£1 MILLION CASE AUTOMATICALLY STRUCK OUT: RELIEF FROM SANCTIONS REFUSED: THE FACT THAT THIS WAS A “ROGUE SOLICITOR” WAS NOT A STRONG ARGUMENT IN FAVOUR OF REINSTATEMENT

April 23, 2025 · by · in Applications, Case Management, Civil evidence, Civil Procedure, Relief from sanctions

The judgment of HHJ Hassall in  Mr Martyn Ian Haynes v Total Plant Hire Limited is available as a link on an article in the Law Society Gazette, available here.  The case involves a detailed consideration of the Denton criteria. In particular some of the arguments on the claimant’s behalf were unusual. More importantly they were not substantiated by evidence that had been placed before the court.

 

 

“… if the misfortune of having a ‘rogue solicitor’ provides an applicant with a route to relief, yet the more anodyne misfortune of having a merely ‘negligent solicitor’ does not, that could have counter-intuitive consequences: most obviously that the worse a client can prove their litigation to have been conducted, the better their prospects of having it reinstated.”

KEY PRACTICE POINT

The easiest point to make is to “employ competent staff”.  However this is is most probably a case about failures of supervision.  Further the major delay in applying properly for relief from sanctions played a large part in the ultimate decision. 

Issues relating to applying for relief from sanctions and what to do when things go wrong are being considered in a webinar on the 4th August 2025 – “What to do when things go wrong in litigation 2025”.  Booking details are available here.

THE CASE

The claimant was seriously injured in a road traffic accident in 2016. He instructed solicitors.  The value of the claim was agreed at around £1 million.

THE “PROGRESS” OF PROCEEDINGS

As sometimes appears almost compulsory the action was issued one day before the expiry of the limitation period and then served two days before the expiry of the claim form.

The defence denied liability and alleged contributory negligence.  However the defendant invited the claimant to a joint settlement meeting and made a 275: 25 offer.

Thereafter there was delay by the claimant with a delay in complying with directions and a schedule of damages not being served at all.

The claimant then made a without notice (and retrospective) application for extensions of time to comply with orders. This was granted but the defendant applied to set it aside. Eventually the claimant obtained relief from sanctions. The claimant’s breaches were found to be serious and significant, further they were part of a pattern of a failure by the claimant to engage and of poor conduct.  At this stage the judge held that it would be disproportional to deprive the claimant the opportunity to rely on witness evidence. The claimant was ordered to pay the costs of all three applications.

The defendant then made a 90:10 offer.

The claimant obtained an order for a trial of the preliminary issue.  The matter was listed for trial on the issue of contributory negligence (the issue of primary liability being conceded).

THE CLAIMANT’S DEFAULT

The claimant then, in September 2022, accepted the defendant’s offer of 90:10.  However  the trial was still listed for the 13th March 2023. The claimant did not inform the court or ask that the trial be vacated.

THE DEFENDANT TRIES HARD TO GET THINGS MOVING

The defendant proposed a draft consent order to confirm the compromise and provide quantum directions.  The defendant’s attempt to progress matters were unsuccessful.

The defendant then resorted to having their leading counsel discuss matters with the claimant’s KC. This led to an interim payment being agreed but the claimant’s solicitor took no further action.

A series of letters from the defendant’s solicitors were not replied to.  One letter asked whether the court had been told that the trial on liability was no longer proceeding.

The claimant’s solicitors were replied were described as “sporadic and of questionable value”.

SOMETHING HAPPENS – BUT AUTOMATIC STRIKING OUT BITES THE CLAIMANT

The claimant’s solicitor enquired about progress of the matter.

“29.  The above was a double non-sequitur by the claimant’s solicitor, in that, as will already be apparent:

  • (a)  in a reverse of conventional litigation practice, the defendant’s solicitors had long-since already drafted a consent order progressing the matter and were awaiting the claimant’s solicitor’s response; and
  • (b)  a subsequent version of the consent order had provided for the interim payments to be made in tranches.
30.  Notwithstanding that, on 20th February 2023 the defendant’s solicitor did indeed draft yet another version of the consent order, confirming the compromise of liability and vacating the trial of the same and providing for a CCMC.
31.  However, in the meantime, on 13th February 2023, in the absence of payment of the fee for the superseded (yet still listed) trial, the claim became automatically struck out. The court sent notice of this to the parties on 22nd February 2023.
32.  On 24th February 2023, the claimant’s solicitors signed the latest (20th February) version of the consent order. It will be noted that it took the defendant the 4 months from 25th October 2022 to 24th February 2023 to secure this elementary step from the claimant, notwithstanding that responsibility for the prosecution of a claim lies upon the claimant.
33.  The defendant’s solicitors filed the signed order at court immediately, on the same day, 24th February 2023. Also on the same day, 24th February 2023, the defendant received the notice of strike-out from the court.”

THE CLAIMANT’S APPLICATION TO RESTORE THE CASE

The claimant applied to “restore the case”. However that application, in itself, was not prompt.

 

“On 27th April 2023 the claimant applied to ‘restore the case.’ It will be noted that this application was filed at least 23 days after the claimant had been reminded by the court of the strike-out and had the same confirmed to them by the defendant. It was 2 months after the automatic strike-out itself, of which the claimant had been forewarned.”

THE INITIAL APPLICATION WAS INVALID

 

36.  On 10th May 2023 the court wrote to the claimant at the direction of District Judge Moss, saying that:

‘The application contains no adequate explanation as to why relief from sanctions should be granted.’
37.  That letter was received by the defendant on 15th May 2023.
38.  At the instant application hearing, leading counsel agreed that the claimant’s purported application to restore of 27th April 2023 was indeed invalid because it neither contained an application for relief nor reasons for the same.Amongst other things, it will be noted that CPR 3.9(2) imposes a mandatory requirement that an application for relief (if made, which it was not) be supported by evidence.

EVENTUALLY A VALID APPLICATION FOR RELIEF FROM SANCTIONS WAS MADE

“39.  The claimant made the current, procedurally valid, retrospective application for reinstatement and relief from sanctions on 11th January 2024. That was:

  • (a)  11 months (332 days) after the claim had been struck out on 13th February 2023;
  • (b)  about 9 months after 4th April 2023, when the claimant’s solicitors told the defendant’s solicitors that the court had told them that their client’s claim had been struck out; and
  • (c)  about 8 Vi months after the inadequate first attempt to reinstate the claim on 27th April 2023.”

THE DEFENDANT TRIES TO PROMPT THE CLAIMANT INTO ACTION

40.  However, the intervening 8 months were not months of complete silence. On 5th September 2023 the defendant had written to the claimant as follows:

‘Having today, checked with the court to ascertain if it has received any further communication from you, we have been told that there has been no such communication and that according to the court’s records the matter remains struck out. You will no doubt appreciate that in the interest of costs and in circumstances in which the claimant’s claim for damages remains struck out for a period now exceeding 6 months without any action by the claimant to reinstate the claim, following the court’s letter dated 10th May 2023, the defendant must consider whether it can reasonably be expected to incur further legal costs and disbursements in a claim which is struck out.
We note with some dismay that the claimant’s failure to respond to the court’s letter dated 10th May 2023 comes off the back of a persistent history of delays and failure to comply with previous court orders.
The purpose of this letter is to inform you that unless you confirm within the next 7 days that you have acted to restore the matter and provide us with copies of your correspondence to the court, we will advise our insurer client to stand down the outstanding appointments with the experts instructed on behalf of the defendant and to consider closing their file.
We take this opportunity to remind you that insurers hold reserves against claims. The prolonged tying up of such reserves is undesirable and can impact on an insurer’s business. This latest example of dilatory conduct is prejudicial not only to the insurer, but also to medical experts who allocate medical examination appointments, taking them away from their practice only to find that appointments are cancelled at short notice. The prejudicial reach extends to the court service also which must divest its valuable and scarce resources dealing with applications which could and should have been avoided.
Accordingly, we invite you to take heed of the contents of this letter and proceed with alacrity. We look forward to hearing from you.’

41.  Some features of that correspondence deserve to be highlighted, as follows:

  • (a)  by seeking to prompt the claimant to ‘restore the matter’ and ‘proceed with alacrity’ the defendant was, to an appreciable extent, acting against its own interests;
  • (b)  the defendant did not adopt a keep-quiet-and-wait approach;
  • (c)  this was exemplary cooperation and consistent with, if not going above and beyond, the requirements of CPR 1.1 , 1.3 and 1.4 ;
  • (d)  the reference to the possibility of standing down the outstanding appointments with the defendant’s medical experts was reasonable and prospective: it was not a fait accompli ;
  • (e)  the defendant was not saying ‘by reason of this claim having been struck out months ago, we have stood down our medical experts’ – rather, the defendant was saying that unless you hurry up with an application to reinstate, we will have to stand down our medical experts.

IN THE MEANTIME THE CLAIMANT’S SOLICITORS DID –  VERY LITTLE

42.  During the 8 Vi month hiatus, the claimant’s solicitors did little but not nothing. On 27th September 2023 they wrote to the court, saying:

‘We refer to the application by consent sent per the email below. I note that despite our previous letters, we have not received a response?’
43.  There are a number of difficulties with that correspondence, including that the defendant had received the court’s letter of 10th May 2023 and that the claimant had apparently waited 152 days (since 27th April 2023, when the first application to restore was made) before reverting to the court. Furthermore, the defendant’s solicitors say that they were informed by the court, on 4th September 2023, that there had been no further correspondence from the claimant.
44.  The court replied to the claimant’s solicitors on 11th October 2023, attaching another copy of the court’s earlier letter of 10th May 2023. The claimant’s solicitors responded on the same day, asserting that the ‘initial correspondence was not received’ and promising to ‘deal with the judge’s request immediately.’
45.  That did not happen. The defendant wrote to the claimant on 6th October 2023 to say that they had cancelled the outstanding medical appointments and, on 13th November 2023, the defendant’s insurers released their reserve and closed their file.

THE CLAIMANT’S SOLICITOR IS THEN SUSPENDED BY HIS EMPLOYER

46.  On 11th December 2023 the claimant’s solicitors suspended the employment of the fee earner that had had conduct of this claim ‘pending an investigation into an unrelated matter related to client care.’ Mr Richard Malloy took over conduct on 2nd January 2024 and the instant application followed on 11th January 2024.

AND NOW ON TO THE DENTON TEST

The judge considered the Denton test in some detail.

 

A BREACH IS NOT RENDERED MORE SERIOUS BY SURROUNDING CIRCUMSTANCES

The judge did not accept the argument that this was an extremely serious breach because of the surrounding circumstances.  At this stage the breach had to be considered in isolation.

“… properly analysed, the claimant’s omission to pay the trial fee remains a moderately serious breach.  It is not magnified into being an ‘extremely’ serious breach by reason of the defaulter’s previous conduct. Neither is it magnified by delay in making the application. But the court’s decision on how to approach this moderately serious breach may take into account those other matters as relevant circumstances under stage 3.”

NO GOOD REASON FOR THE BREACH

“The claimant concedes that there was no good reason for the breach. Factors such as the ‘rogue solicitor’ point are not proposed as amounting to a good reason, rather they are relied upon within the third stage, below.”

THE THIRD STAGE OF DENTON

“The evidential burden is on the party making the application – and, as noted earlier, CPR 3.9(2) contains a mandatory requirement concerning evidence. As is normal in such cases, most of the relevant facts are not in issue. Where, however, the party asserting a fact is required to prove it, the court (whilst not conducting a mini-trial) must respect the maxim that he who asserts must prove. Hence, whilst the defendant may rely upon evidence in response, it is for the claimant, as the defaulter and applicant, to put evidence before the court going to any facts beyond the defendant’s knowledge and/or admission that are said to support the grant of relief.”

THE JUDGE’S DETAILED CONSIDERATION OF THE DENTON CRITERIA

The judge carried out an extensive review of the Denton criteria and the relevant cases.

THE JUDGE’S REJECTION OF THE ARGUMENT OF “LOSS OF PUBLIC CONFIDENCE”

 

Loss of public confidence
72.  Mr Barnes, echoing something said in his instructing solicitor’s witness statement, ventured to submit that if relief was refused to his client, and thus the claim against the original tortfeasor should fail, there might be a loss of public confidence in our system of civil justice. I should emphasise that this ambitious proposition was not advanced with any inappropriate vigour.

73.  I consider this point to be without merit because:

  • (a)  reasonable people either know, or ought to know, or should be deemed to know, that a system of justice needs rules and a rule without consequences is merely advisory;
  • (b)  sometimes the consequence for a breach will be the loss of the primary claim – whether it should be, or not, depends upon the other tests identified in this judgment;
  • (c)  in reality, the claimant’s remedy is to receive a transfer of funds from an insurance company, not from the driver who did the damage. Whether the name on the transfer belongs to a motor insurer, an employers’ liability insurer, or a professional negligence insurer, is not a matter likely to trouble the officious bystander for long.
74.  If I am in error about any of the above, I take comfort from the fact that Dyson LJ (as he then was) 18 must have fallen into a similar error when he decided Hashtroodi v Hancock [2004] EWCA Civ 652 .

75.  In Hashtroodi , the claimant had been caused tetraplegia by a motorcycling accident when he was aged 46 and (then) employed. The breach in question concerned CPR 7.5 and 7.6 and failure to serve a Claim Form, which is a self-contained branch of law, wherein, unusually, the court has little or no discretion. I therefore emphasise that I do not in any way conflate the Court of Appeal’s decision in this case with the exercise I am conducting. I am merely answering the ‘public confidence’ point. I observe that the Court of Appeal said:

21.  It is easy enough to take the view that justice requires a short extension of time to be granted even where the reason for the failure to serve is the incompetence of the claimant’s solicitor, especially if the claim is substantial.
Then later:
34.  Our review of the facts discloses that the only reason for the failure to serve the claim form within the four months’ period was the incompetence of L&M. The deputy master observed that Mr Pike sought to look after his client’s interests, and it was not “absolutely certain” that a negligence claim against the solicitors would succeed. On the material that has been presented to this court, we can see no answer to an allegation of negligence against the solicitors. (…)
35.  It follows that this is a case where there is no reason for the failure to serve other than the incompetence of the claimant’s legal representatives. Although this is not an absolute bar, it is a powerful reason for refusing to grant an extension of time.
76.  It will be noted that the court took into account that the claimant had suffered one of the most catastrophic of all injuries, yet refused relief even though the default was due to ‘the incompetence of the claimant’s legal representatives.’ Rather than that factor being treated as mitigating, it was described as ‘a powerful reason for refusing to grant an extension of time.’ No concern was expressed about any public confidence implications of the inevitable replacement of the road traffic claim by a solicitors’ negligence claim.

THE POTENTIAL CLAIM AGAINST THE NEGLIGENT SOLICITOR

87.  I will deal firstly with the usual imperfections of any secondary claim against solicitors, before coming to the ‘rogue solicitor’ point.
88.  I accept Mr Barnes’ submission that the courts have always recognised that a secondary claim against solicitors following the loss of a primary claim against a third party due to professional negligence may be an imperfect remedy. In law, such a claim is for Toss of a chance.’ and I take judicial notice of the fact that such claims are usually settled on a multiplier of less than 1, e.g, 0.9 or 0.95, to reflect the litigation risk of the original claim.
89.  I have considered Mr Woodhouse’s submission that no such reduction is likely here because the only litigation risk (after the 90-10 liability settlement) was risk that the claim be lost due to some other negligence by the same solicitors, which could hardly be relied upon as a notional defence. There is some force in that but not total force: another way in which a damages-only claim might be lost is due to a loss of interest or cooperation by the client, and Mr Woodhouse’s own submissions included the allegation that there was some prior evidence of that in this case. Having said all that, as the original claim was for quantification only of severe personal injuries, I do accept that any appropriate reduction would be small.

90.  As Fancourt J said in Badejo at [20]:

‘The claim that may be brought against the solicitors is of course a harder claim to bring and prove, and would be more expensive for the appellant, and the measure of damages recovered may well be less than the full amount of the claim against the respondent.’

91.  Fancourt J then held at [23]:

‘Ultimately, in my judgment, despite the fact that a moderately serious breach was committed without mitigating circumstances, justice is better done in this case by enabling the current action to proceed to a trial, rather than requiring the appellant to start new proceedings for his claim, or alternatively a claim for negligence against the solicitors, or possibly both.’

92.  It may be noted that the underlying claim in Badejo concerned a contractual argument about an alleged option agreement, which is a rather more uncertain prospect than a 7-figure personal injuries claim in which liability has been settled. That may be an irrelevant distinction, however, because the Court of Appeal adopted a similar approach in Cable v Liverpool Victoria Insurance Co Ltd [2020] EWCA Civ 1015 , holding at [90]:

‘The appellant was the victim of an accident for which the defendant had long ago admitted liability. His claim was started in good time under the RTA Protocol, and he was not responsible for the catalogue of errors and delays since then. His claim form was issued within the prescribed three years. If that claim was struck out now, he would have to start all over again, this time with a professional negligence claim against his current solicitors, with all the risk and uncertainty, not to say cost, that such a claim would involve. Moreover, that would be a loss of a chance claim, which is inevitably an inferior type of satellite claim, particularly when compared to the present proceedings, which involves a claim against the primary defendant who has already admitted liability.’
93.  In Cable the Court of Appeal was concerned with the infliction of a sanction after an abuse of process, not with the removal of a sanction after a valid automatic strike-out. But overall the point is much the same.
94.  Mr Woodhouse has submitted that the claimant ought himself to have realised that his claim was proceeding at an unacceptable pace; hence in this case he does bear some share of the blame personally. I prefer Mr Barnes’ submission that the court should hesitate long before finding that a young man with a brain injury (even with capacity and pursuing a professional qualification) and no experience of litigation should have realised that things were amiss. I thought Mr Woodhouse’s fire was better aimed at the claimant’s solicitors’ firm as a whole – i.e., what other members of the firm, not the lay client, should have realised. I return to that under the ‘rogue solicitor’ point and also under ‘the vicarious liability non-admission’ below. But I do treat the claimant as personally blameless. 
95.  Although I accept Mr Barnes’ submission that the court should approach the prospect of a secondary professional negligence claim as causing the claimant some prejudice, it may be noted that in other cases the senior courts have seemed more sanguine about that prospect than in Cable .

96.  In the well-known decision of the Supreme Court in Barton v Wright Hassall [2018] UKSC 12 it was held that the Rules would be enforced as rigorously against litigants-in-person as against represented parties even though, at [41(v)] it was noted that:

‘As an unrepresented litigant, Mr Barton has no recourse to solicitors’ insurers of the type which would be available to a represented litigant whose solicitor made the same mistake as he did.’
97.  The Supreme Court neither said, nor implied, that the court should be reluctant to refuse relief to those left with the remedy of suing their erstwhile solicitors. In fact, for reasons I think obvious, the implication is that if (which it was not) the court had been minded to apply a different standard, it might have expected higher standards from those represented by solicitors, on the reasonable basis that their clients would be largely protected from the consequences of refusal of relief by recourse to a professional negligence claim.

98.  Similar words feature in the Court of Appeal judgment in Hashtroodi v Hancock to which I have already referred under the ‘public confidence’ point. But I still accept the main thrust of Mr Barnes’ submission. Overall:

  • (a)  I prefer Mr Barnes’ submissions on the fact of prejudice and accept that a refusal of relief will cause the claimant prejudice, including either the probability or at least the real risk of:
    • (i)  delay;
    • (ii)  irrecoverable costs;
    • (iii)  loss of damages;
  • (b)  Hence, I reject Mr Woodhouse’s submission that the court should approach the matter on the basis of no loss of damages at all;
  • (c)  However, I accept Mr Woodhouse’s submission that the loss of damages will probably be small;
  • (d)  I also accept Mr Woodhouse’s submission that the process of quantification, in a case in which much of the medical evidence has yet to be obtained, will be similar whether the matter proceeds as the original claim or as a secondary professional negligence claim.

THE “ROGUE SOLICITOR” POINT

The claimant argued a point that I do not think I have seen argued before. It was argued that the solicitor who had dealt with the matter was so “rogue” that there was a possibility that firm of solicitors may not be vicariously liable for their actions.  The fact that the solicitor was so “rogue”, it was argued, was a factor in favour of relief from sanctions.

“99.  Mr Bames submits that the conduct of the fee-earner concerned was so bad as to amount to an exceptional circumstance, in that a solicitor had ‘gone rogue.’ This was said to have two effects on the application: firstly, the court should give the claimant more leeway than would have been the case following run-of-the-mill negligence by agents; and secondly, when weighing the prejudice to the parties that would follow from a refusal of relief, the court should take into account that the claimant’s firm was not conceding that they would necessarily be vicariously liable for the wrongdoing of the fee-earner concerned. Concerning vicarious liability, it may be important to note that this was put as a non-admission, not at this stage as a positive denial. Mr Barnes’ argument was not that the court should approach this aspect of the claimant’s firm’s putative defence as likely to succeed – merely that the court, when weighing the scales, should factor in a risk to the claimant that it might succeed.
100.  The evidence in support of these propositions comes from the claimant’s solicitors’ witness statements. The allegations against the fee-earner concerned have developed. Before going through the same, I pause to note that during the instant hearing I expressed some concern to Mr Bames that the court was being asked to deliver a judgment in open court that would include some serious allegations (not findings, but allegations) against a professional person who had had no apparent right of reply. Mr Bames accepted that the claimant’s solicitors’ witness statements had not been seen by the fee earner concerned, so he had had no opportunity to comment on them. Although, on Mr Barnes’ instructions, it was overwhelmingly unlikely that he would disagree with the same, Mr Bames accepted that it was a theoretical possibility. Mr Barnes asked the court to accept that his instructions came from the fee earner’s former employers who are, of course, senior solicitors.

101.  I think it would be over-cautious of the County Court, of its own initiative, to adjourn an interlocutory application within two-party damages litigation in order to permit a person once employed by the claimant’s own solicitors’ firm potentially to intervene as a non-party. It would certainly result in yet more delay and costs. It would neither be usual nor desirable for the court (if faced with a dispute over the fact or extent of the alleged wrongdoing) to stay the entire application to await the SRA’s decision. I shall therefore proceed to deal with the application before the court, albeit with a degree of caution, as follows:

  • (a)  I will continue only to refer to the solicitor in question as ‘the fee-earner concerned’;
  • (b)  I shall not specify the fee-earner’s precise role within claimant’s firm, save to say that it was senior and related to personal injuries;
  • (c)  I repeat and emphasise that the allegations to which I am about to refer are no more than that – the court is neither making, nor even reciting, findings;
  • (d)  I similarly repeat and emphasise that neither the defendant nor the fee earner concerned has had any input into this part of the evidence;
  • (e)  I am not going to set out additional, serious, allegations that Mr Barnes (quite properly) set out in oral submissions to the court on instructions, which did not relate to the instant case, which were said to have been conveyed to Mr Barnes’ solicitors by the SRA, to which the fee earner was said to have ‘confessed’ (to the SRA, not the firm), which were not in the claimant’s solicitors witness statements, which appear inconsistent with the SRA’s own handling of this matter (see below), and of which there is no evidence before me in the application anyway.

102.  The allegations began in Mr Malloy’s 1st statement of 11th January 2024 in (perhaps understandably) opaque terms (para 29):

‘In December 2023 [the fee earner concerned] was suspended by the firm pending an investigation into an unrelated matter relating to client care. At the time of writing this statement that investigation remains ongoing and it would not be proper to comment further on the nature of [his] suspension.’
103.  In Mr Malloy’s 2nd statement of 24th April 2024 he added a number of allegations/developments, being that: the fee earner concerned had delayed and frustrated the firm’s investigation and then resigned before its conclusion; the firm was working closely with the Solicitors Regulation Authority and had reported the matter to the police; the fee earner had lied to and misled colleagues and had deleted emails, destroyed post and amended documents; that communications on the instant case (such as the chasing emails from the defendant and court orders) could not be found, so had been deleted. Reference was made to a medical matter  but beyond that it was said that there was no known motive for the misbehaviour alleged.

104.  In Mr Abrams’ statement dated 11th January 2024 he expressed surprise and dismay over the fee earner’s conduct given his long and previously creditable history at the firm and said (para 23) that the conduct:

‘goes against the ethos of the Firm and all the procedures that the Practice has put in place to avoid issues such as this.’
105.  Whilst I do have sympathy for the predicament faced by the claimant’s solicitors’ firm, I observe that Mr Abrams did not say what those procedures were, save for ‘monthly file reviews’  by Mr Ian Kay, or how it was that effective procedures could have permitted this claim to proceed as it did before, to, and after, the strike-out.

106.  I reject the claimant’s ‘rogue solicitor’ point for the following reasons:

  • (a)  there is insufficient evidence to cause the court to approach this application differently from any other relief from sanctions application arising out of apparent solicitors’ negligence;
  • (b)  there is no evidence of malfeasance concerning the strike-out of the claimant’s claim;
  • (c)  the evidence is predominantly of run-of-the-mill negligence;
  • (d)  the court should approach ‘rogue solicitor arguments’ with caution;
  • (e)  the defendant is right to say that the claimant’s firm as a whole bears some responsibility.

THE JUDGE’S REJECTION OF THE “ROGUE SOLICITOR” POINT

The judge did not accept the claimant’s solicitors arguments on this point.

  • There was insufficient evidence before the court to substantiate it.
  • The solicitor was still in practice.
  • There was no evidence before the court that the solicitor in question had been actuated by any improper motive.
  • The evidence was of “predominantly run of the mill negligence”

 

“The overall picture is of foot-dragging delays, sporadic engagement, non-sequitur correspondence and generally inadequate prosecution, culminating in the omissions to inform the court that the preliminary issue trial was otiose, or to pay the trial fee, or to make a timely application for relief. That is run-of-the- mill negligence, typical of the pattern this court has seen in many other problematic cases. Although, admittedly, such failures are not usually seen in higher value claims, beyond that there is nothing special about it.”

 

” There is nothing illogical about the claimant’s submissions on this topic and nothing to cause me to consider them to be, in principle, misconceived. I do, however, believe that they should be approached with caution. Firstly, when the court weighs the third stage of Denton, it is not conducting a mini-trial into the particular acts and/or motives of an alleged malefactor. In my judgment, the court will usually do better to attach weight to objective facts such as key dates and obligations missed, rather than attempting to divine, for example, intent.
116.  Secondly, if the misfortune of having a ‘rogue solicitor’ provides an applicant with a route to relief, yet the more anodyne misfortune of having a merely ‘negligent solicitor’ does not, that could have counter-intuitive consequences: most obviously that the worse a client can prove their litigation to have been conducted, the better their prospects of having it reinstated.
117.  I repeat that there is nothing illogical about the above: similar arguments have been considered many times in the vicarious liability cases. It is possible that in a future case a rogue solicitor argument could succeed. But it seems to me that any such success should occur in a case in which the evidence is both clearer than in this one and more directly related to the instant file and the instant failures.
118.  The evidential burden is on the claimant and the evidence, in my judgment, is neither so clear, nor so directly relevant.

THE FIRM BORE RESPONSIBILITY

 

“The claimant’s firm as a whole bears some responsibility
119.  I accept the defendant’s submission that a client of a solicitor’s firm, engaged in 7- figure litigation, is entitled to expect from that firm an appropriate level of collective responsibility and supervision, including peer-to-peer review, systemic checking and frequent file reviews, such that it should be difficult in the extreme for a case of this kind to be jeopardised by one fee earner’s omissions.

120.  I note (and where necessary, take judicial notice) that:

  • (a)  other members of the firm knew, or ought to have known, that in this case:
    • (i)  the accident was in 2016;
    • (ii)  breach of duty had been conceded;
    • (iii)  there had been no interim payment;
    • (iv)  the medical evidence was at an early stage;
    • (v)  leading counsel had had to appear at an earlier relief from sanctions application;
    • (vi)  adverse costs orders had been made on 3 applications;
  • (b)  incoming correspondence should (at least occasionally) be reviewed by other fee earners;
  • (c)  files should be reviewed at set intervals in conjunction with other fee earners;
  • (d)  I.T. systems should prevent or minimise the risk of deadlines being missed;
  • (e)  it is possible for I.T. systems to include records of communications that individual users cannot delete without trace. 27
121.  In particular, I accept Mr Woodhouse’s submission that the sheer age of the case, combined with no interim payment, little medical evidence, no updated Schedule of Loss, a prior application for relief and no quantum directions, were flags coloured at least amber. I accept the defendant’s submission that much of the claimant’s arguments depend upon the court accepting that in 21st century, 7-figure litigation, it is likely that all of the failures in this case could be the sole responsibility of one individual.”

THE ARGUMENT THAT THE CLAIMANT’S SOLICITORS FIRM MAY NOT ACCEPT VICARIOUS LIABLITY FOR THE ROGUE SOLICITOR

126.  Mr Woodhouse observed that this new line of argument had been put for the first time in his learned friend’s skeleton; he said that it was opportunistic and inconsistent with the promises of indemnification of the client re costs. It does not feature in any part of the claimant’s solicitors three witness statements. Neither, therefore, has the claimant put before the court the terms of any insurance policy nor any indication of position by the claimant’s solicitors’ insurers. I note that the court has not been referred to any authority concerning vicarious liability, even though this is a matter that has recently been the subject of judicial decision at the highest level.
127.  Amongst the many imponderables are whether a future claim might be made against the claimant’s firm as first defendant and the fee earner concerned as second defendant, meaning that vicarious liability would not be the only route (subject to means and/or insurance) to an enforceable judgment. But it is unnecessary to speculate about this and other questions because the evidential burden is on the claimant and it is nowhere near discharged.
128.  Consistent with the court’s decision above on the rogue solicitor point, I accept Mr Woodhouse’s submission that the claimant’s solicitors have put insufficient evidence or legal argument before the court to cause the court to approach the secondary claim against solicitors as anything other than a routine matter of inevitable liability. I repeat that the evidence before me is predominantly of run-of-the-mill negligence, typical of the pattern this court has seen affecting many other problematic cases. I have accepted Mr Singh’s critique of the claimant’s firm’s supervision of the fee earner concerned, which puts a hole in the vicarious liability nonadmission. Even more fundamentally, the main thing that the claimant would sue his solicitors for would be omitting to pay the trial fee and thus causing the strike-out, which all agree was just negligent.
129.  In the absence of positive evidence to persuade the court otherwise, the court approaches the matter on the basis that: (i) solicitors who omit to pay court fees on behalf of their clients will be found negligent and (ii) their employers will be vicariously liable for that omission and (iii) solicitors are insured. I reject Mr Barnes’ submission that there is any significant risk of the contrary. I also repeat my earlier acceptance of Mr Woodhouse’s submission that the firm as a whole bears some responsibility anyway.
130.  For the reasons given, on the evidence I do not believe that the court should give a judgment on this application for relief from sanctions that is made significantly different by the rogue solicitor point, nor by the vicarious liability non-admission.

STAGE 3: PROPORTIONALITY

Decision on Stage 3 of Denton and proportionality
144.  I have taken into account all the parties’ submissions. The points I found most persuasive in support of the application were that this was a moderately serious breach, the claimant is personally blameless, severely injured, has been let down by solicitors and, if relief is refused, will probably have to pursue a secondary professional negligence claim suffering, overall, more prejudice from such an outcome than the defendant would from the contrary.
145.  The points I found most persuasive against the application were that there was delay in making it to the extent that it was filed 11 months after the event, the total delay attributable to the breach (and associated failings) is around 18 months, the accident was 8 years ago, the claimant has made little progress in all that time, and has already had to achieve relief from sanctions previously, when the court held that: ‘The claimant’s conduct had caused inefficiency and delay. The breach was in a pattern of failure to engage and poor conduct.’ It is regrettable that after that occasion, the matter was not only struck out but also the subject of haphazard progress both before and after the strike-out, the latter period even including earnest attempts by the defendant’s solicitors to achieve a solution, yet to no avail. The claimant’s breaches have together wasted several days of precious court time and associated administrative resources. The fee earner concerned was not a sole practitioner and the claimant’s solicitors’ firm as a whole bears some responsibility.
146.  I have taken into account the parties’ other points also, giving them some weight in aggregate, even if not so much individually as the ones briefly recited above.
147.  I have reminded myself of the ratio of Denton and have given particular weight to the need for litigation to be conducted efficiently and at proportionate cost; and for the court to enforce compliance with rules, practice directions and orders.
148.  In all the circumstances, I prefer the submissions of the defendant under stage 3 of Denton. The claim should never have reached this state but having done so, it is just that it remains struck out.
149.  Although this was a disproportionate outcome in Badejo, in my judgment it is proportionate in this case, for the same reasons considered within stage 3. The claimant’s own submissions concerning the ‘last chance saloon’ amounted to a sensible recognition that it would be proportionate for the matter to be struck out on any future significant breach, by reason of its pre- and post-strike-out history. I agree with that but I go further and prefer the defendant’s submission that it is already proportionate now.
Judgment
150.  For the reasons given, the claimant’s application for reinstatement and relief from sanctions is dismissed and therefore the claim remains struck out.
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