SURVIVING MITCHELL 15: SHARE THE PAIN

Most of the burden of complying with time periods and court orders lies with the solicitor.  However a solicitor’s life can be made easier by making sure that all those concerned with the litigation process know of the deadlines involved and the importance of complying with them.

THE CLIENT: MAKE SURE THEY KNOW ABOUT TIME PERIODS AND DIRECTIONS AND THE CONSEQUENCES (TO THEM) OF FAILING TO COMPLY

Many cases of failure to comply involve some element of delay on the part of the client, whether an individual or corporate entity.  Sometimes the solicitor attempt to pin the blame on the client – they “would not reply to correspondence”, provide documents, were always delaying.  However this is barely an answer to an action in negligence.  The solicitor’s life would be a lot easier if the consequences of failing to comply were spelled out in clear and absolute terms at the outset of the retainer and on each occasion that a reminder had to be sent.

• Vague assertions that “time limits are important” are not sufficient.
• At the outset of the case the retainer letter should set out in clear and absolute terms  the importance of complying with time limits.
• Once directions are obtained then the client must be informed and reminded of the importance of complianc

(I can foresee some solicitors complaining that this will lead to clients ringing them to check compliance.  This is a price worth paying. Kerry Underwood has written that one Mitchell case could lead to the closure of some firms.)

An example can be found in Gregson’s terms of business  (Section 24). It may be worthwhile having a separate letter emphasising the point.

• Set out, in clear terms, the consequences of a failure to comply. Including the fact that the client may well be ordered to pay the costs of an action.
• Remind the client on each occasions necessary.

General guidance from the Law Society on retainer letters is available here.

EXPERTS: SEND THEM DIRECTIONS (IT IS COMPULSORY ANYWAY)

It is a requirement of the rules that experts are sent copies of directions made. The Practice Direction to Part 35 states:

“8

Where an order requires an act to be done by an expert, or otherwise affects an expert, the party instructing that expert must serve a copy of the order on the expert. The claimant must serve the order on a single joint expert.”

There is no point in pulling punches.

• Ensure that the expert can comply with any timetable prior to instruction.
• Ensure that the expert is aware of the consequences of non-compliance.
• Ensure that the expert knows that if, for any reason, they cannot comply with the court timetable then the solicitor should is informed well in advance so that an application for an extension of time can be made well ahead of the date for compliance.

The courts have become far less indulgent of delays by experts and the expert must be able to give reasons for any delay – overwork is unlikely to be looked upon with sympathy.

COUNSEL: PUT ANY DEADLINES CLEARLY AND FULLY ON THE FRONT OF THE PAPERS AND IN THE LETTER OF INSTRUCTIONS

Again it is important that counsel are made fully aware of the dates for compliance.  This is best not hidden away on page 22 of any instructions but (as some of my Instructing Solicitors favour) in bright red, and in large writing, on the letter of instruction and on the papers themselves.

• It is important that the papers are sent before the date of compliance. If the skeleton argument is due 7 days before trial and the papers sent 5 days before trial this can create some difficulty for even the most proficient counsel.
• “Waiting for counsel” is an excuse unlikely to be accepted by the court as a reason for default.

SHARING THE PAIN

The central importance of complying with court directions must be shared with the client, the experts and counsel.  A solicitor who fails to spell out the crucial nature of compliance, and the dire consequences of default, is unlikely to have a defence to a negligence claim, even if the reason for default arises from delays by their client.   The only safe course of action is to spell the consequences out in clear and frightening terms.