WHEN THINGS GO WRONG IN LITIGATION: SOME KEY POINTS AND SOME USEFUL LINKS

April 30, 2024 · by · in Avoiding negligence claims, Webinar, Well being

Earlier today I gave a webinar on “What to do when things go wrong in litigation”, this was immediately before I went to court to argue a case which, among other things, related to extensions of time to serve the claim form.  The webinar itself is available on demand.  I have sent useful links out to those who attended the webinar.  I also promised to post some material on the blog. This is not new. It remains, however, important.  (The webinar is available “on demand” until the 30th October 2024 – details are available here).

 

WHEN THINGS GO WRONG IN LITIGATION – AND THIS HAS TO BE SAID TIME AND TIME AGAIN – SEEK HELP

The important thing is to seek help. We litigators make a living because people make mistakes. It cannot be a great surprise that mistakes happen in litigation. Everyone is  going to make mistakes (Even judges, otherwise there would be no need for the Court of Appeal and the Supreme Court…).

WHEN THE SKY FALLS IN

Mathew Hickey puts the point succinctly in Rocket Lawyer

“There will be moments in your legal career when things go wrong. Maybe even the devastatingly, “the sky is falling” sort of wrong.”

Legal culture, however, favours the myth of infallibility.  Lawyers do not make mistakes.  This contrasts with reality, where mistakes are made.

THE REASON THIS IS IMPORTANT

This myth (and again myth it is) of legal infallibility can have profound consequences.  The most significant of which is that it can make lawyers reluctant to  admit their mistakes at once, or, as in the case above, attempt to hide them.  The difficulty is that:

  • Many mistakes can be rectified if dealt with early.
  • The “cover up” of the mistake is almost always far more harmful than the mistake itself.
  • The costs, expense and delay to the client are made much worse.

SO TELL YOUNG LAWYERS (AND REMIND OLDER LAWYERS) THAT MISTAKES WILL BE MADE

  • Making mistakes does not make you a bad lawyer.
  • Failing to admit mistakes makes you a bad lawyer (you are never going to learn).
  • Covering up your mistakes makes you a dishonest lawyer (and probably an ex-lawyer).

Mistakes in litigation, if identified early enough and dealt with promptly enough, can often be rectified, or at very least the consequences minimised.

Far better to face up to a mistake than lose your means of earning a living.

PILOTS LEARN ABOUT CRASH LANDING: LAWYERS DON’T

As a passenger I am comforted by the fact that pilots have regular training on what to if anything goes wrong during the flight. I don’t expect things to go wrong, I  certainly don’t want anything to go wrong. However there are good reasons for pilots to be trained in this way. Not least they are learning from mistakes made in the past.

However there is very little by way of equivalent for lawyers.  It could be said that the issues are “obvious” and do not need telling.  However this does not take into account the sheer feeling of panic that can overtake a practitioner when a mistake has been made.  There, are, of course, sometimes issues of ego as well.  However the purpose of training and instruction is to ensure that people know what to do.

APPLYING THIS TO CIVIL LITIGATION

The need for contingency planning

Litigators, of all people, should know that things can go wrong. If they did not then there would be no need for litigators. Planning for things to go wrong is not a sign of weakness or defeatism.  It is pure realism.  All litigation departments have systems in place to ensure that things go right, however your contingency plan provides the essential safety net. Further effective contingency planning will feed back into the department and cut down on mistakes in the first place.

Knowing when things go wrong

Any contingency planning has to have a strategy for recognising when things have gone wrong.  In many cases this is obvious. The key point is often when a limitation period is missed, proceedings not served in time or an application made to strike the action, or part of the action or Defence, out.

Who should deal with the file?

When matters go wrong on a file it, normally, becomes the bane of the lawyer’s life.  It is often passed onto someone else. Hence the courts often see witness statements that say:

“I now have conduct of this matter because I am the newest/youngest/ most gullible person in the department and everyone else realised that this file was a bag of rats.”

Of course the statement does not say that expressly. However most of our District Judges and Masters have knocked around for while and they can recognised the “hospital pass” file. It is not difficult to read the writing between the lines and Judges are, often, not impressed. Any  personal sympathy for the litigator involved is overtaken by anger (if not disgust) with the firm that put the litigator in that situation.

Further it is doubtful whether the new fee earner is comfortable with the file.   I have been involved in cases, particularly for large firms, where the assistant solicitor given charge of the matter regarding  being handed the “problem” file as somewhat of a blot on their career. They have explained to me that they felt that even being associated with the file would taint their reputation and their prospects. Further because much of the time spent on the file could not be billed they were unwilling to spend enormous amounts of time on it.

Someone sensible, and experienced needs to take this on

If a decision is made that problem files should be moved on (and my Advice is that, subject to the views of the client, they should be at least for the purpose of solving the immediately problem) they need to be moved to someone senior and with considerable, patience, wisdom and experience.  There is an abundance of talent in our litigators and, in most firms, someone will fit the bill.  Dealing with problem files should be the pinnacle of the litigator’s career. With these files it is often your firm’s money and reputation at stake it is sheer folly to hand the file to someone who is uncomfortable with them, no matter how diligent they are.

Act promptly and act decisively

Usually this involves an application to the Court, or defending an application.  This is where things can go wrong and where golden opportunities are missed for things to go right.  Any application made hereinafter, should be perfect with the forms accurately completed, witness statements clear, concise and wonderfully drafted and everything lodged and served in good time.

The important thing here is to be clear about the decisions you are making and, if relevant (which it usually is), consult with your indemnity ins

  •  If the position is hopeless then it is prudent to recognised this at once and mitigate   the damage as much as you can.  Hopeless applications to the court will only increase costs.
  • Even if the position is, apparently, hopeless there may be other escape routes. For instance  the law relating to service of a claim form within the four month period is extremely strict.  It will be rare for a court to grant an extension. However:-
  •  If the limitation period has not expired you can issue again.  (This is not, automatically, an abuse of process).
  • If the limitation period has expired, in personal injury cases,  then you can make an application under Section 33.

The case may require some lateral thinking. However if the position is hopeless then you must advise your client to go elsewhere.

If the position is salvageable then there are two rules:-

*           Don’t make the position worse.

*           Do what you can to make the position better.

 

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