(or Mitchell was misunderstood)
So the Master of the Rolls, Vos LJ and Jackson LJ have clarified the new (ish) Rule 3.9 and Mitchell in Denton & Ors v White & Ors  EWCA Civ 906 by setting out that the test is now:
- Is the breach serious or significant – if not then relief is likely to be appropriate;
- Why did the failure or breach occur?
- In all the circumstances – and giving the factors mentioned in Rule 3.9 the necessary weight – should relief be granted?
The court is particularly critical of uncooperative litigation – a cornerstone of the Jackson reforms – and the satellite litigation that has developed. The Court of Appeal provides direct guidance to judges that parties taking an opportunistic or uncooperative approach to litigation should be dealt with by way of costs sanctions and points out that this situation can be recorded in its order so as to extend beyond the (often relatively minor) costs of the application into consideration upon costs at the conclusion and gives examples of indemnity costs or overall reductions.
It is worth noting that the Court of Appeal is critical of doing justice in the immediate case only bearing in mind the scarcity of judicial resources.
The effect seems to be intended to foster a more cooperative approach to litigation but how it bears out remains to be seen.
Where costs remain a significant issue the intended effect may work but where parties are