In Mitchell (the "plebgate" case), the Court of Appeal dismissed Mr Mitchell's appeal against tough sanctions imposed for his legal team's failure to file a costs budget on time. The budget was filed the day before the hearing, rather than seven clear days as the CPR require. The upshot is that Mr Mitchell is unlikely to recover any costs beyond applicable court fees if he wins his case. Ironically, the defendant had also been late in filing its budget by one day, but the point was not taken.

The court set out guidance as to how the new approach on compliance should be applied in practice. Key points are:

In Durrant, the Court of Appeal took an early opportunity to apply its own guidance in Mitchell and overturned the High Court's decision to grant relief from sanctions for late service of witness statements. The result is that the defendant police authority will not be able to rely on any witness evidence in defending the claimant's serious allegations of assault and race discrimination. The evidence includes two statements where the deadline was missed by just one day.

The court said that the High Court had not appreciated how much less tolerant an approach towards non-compliance is required by the new rules. It emphasised that decisions under CPR 3.9 that fail to follow the robust approach laid down in Mitchell would commit an error of principle and should not be allowed to stand.

In granting relief from sanctions, the High Court had placed particular weight on reputational issues and the public interest in the court scrutinising the actions of police officers in the light of all of the evidence. The Court of Appeal, however, said that such considerations should have only a limited role to play in an application for relief from sanctions. Although they may be relevant at the earlier stage of considering the appropriate deadline and any sanction for a failure to meet it, on an application for relief from sanctions the court's starting point is that the order imposing the deadline and sanction were properly made.

Parties to litigation will need to ensure that deadlines set for procedural steps are realistic and that every effort is made to comply with them. Where that is not possible, they will need to apply for more time before the deadline arrives and be prepared to demonstrate why an extension is appropriate. If a party wants to argue that the order imposing the deadline or the sanction was not appropriate when made, it should appeal or apply to vary or revoke the order. It appears that there will be little scope for such arguments on an application for relief from sanctions.

Although trivial breaches are likely to be excused, there is obvious scope for debate as to whether or not a breach is trivial. Even where a breach can properly be described as trivial, it will still be necessary to apply for relief from sanctions promptly, at least if it is clear that the opponent is not prepared to waive the breach. Where a breach is not trivial, the party in default will need to show that there was good reason for the breach. This is likely to be more difficult to establish where the breach arises from circumstances within the party's control.

One point that remains uncertain is whether the court's tough new approach, and the need to apply for relief from sanctions, applies only where a breach has a built-in sanction (for example, where an "unless order" has been made, or where there is a sanction specified in the CPR) or whether it applies to any breach of the CPR or a court order. Clarification on this point would be welcome.

The Court of Appeal's view, as expressed in both Mitchell and Durrant, is that the new strict approach will mean less satellite litigation, as parties will become more efficient and there will be fewer applications for relief from sanctions. The counter-argument is that parties may become less co-operative, looking to take advantage of any and every breach by an opponent, which could mean more satellite litigation. Only time will tell.