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Tuesday, 17 December 2013

Litigation - a trivial pursuit?

It is less than a month since the Court of Appeal decision in the Mitchell case changed, forever, the way civil litigation is pursued on this country.

This is the case where the Solicitors acting for Andrew Mitchell MP effectively lost any right to recover fees for the work done by them in connection with his defamation claim against The Sun. This was because they filed a budget at court 6 days late. The fees are likely to exceed £500k. It remains to be seen whether they will stay in business.

The upshot of the appeal is that any missed deadline is likely to lead to severe sanctions. 

It used to be that a delay of a day or two would be permitted because we live and work in a real world where these things happen. Not anymore. The Court of Appeal did say that ‘trivial’ breaches might be forgiven but did not give any helpful definition.

Since that decision lawyers have been assessing the likely damage. One case has already come before the court and it is fair to say that the situation is bleak as we have predicted.

Romano v k Papers (Blackburn) Ltd was a routine claim for noise induced hearing loss at work. The court had ‘stayed’ the court action until February 2013 to enable the parties to try and agree settlement. Sadly the claimant’s Solicitors went out of business. New Solicitors acting for their administrators asked the court for more time. They were granted and extension to 17th June 2013 but the order stated that after that date the claim would be struck out. The new solicitor reviewed the file on 18th June and noticed to his horror that the date had passed. He immediately applied to have the case reinstated. Surely in all the circumstances a delay of just one day was ‘trivial’. Sadly not.

The case came before HHJ Gore who upheld the decision to strike out the claim in its entirety. The delay of just one day was not trivial. Who was prejudiced? The court administration, which had to find space in the diary for the hearing. The judge also dismissed submissions that the claimant was deprived of a fair trial under Article 6 of the European Convention on Human rights. The reason given was that the claimant could sue his lawyers.

So this is the new world in which we now find ourselves. A minor error can now have massive consequences which are totally disproportionate. The whole idea of a civil justice system is surely to resolve disputes in a way that is fair and ‘just’. Now it has to be one which does not inconvenience the court’s diary managers. The most chilling statement is the one that dismisses complaints of injustice by redirecting the claim to the lawyers. Most victims, especially in the more serious cases, want something more than just money. They want the person responsible to be held to account, they want answers to questions.  In short they want ‘justice’.

Solicitors firms have recently been through their insurance renewal process. This has been one of the toughest in history and a significant number of firms face closure because they either, could not get insurance, or could not afford massively increased premiums. I predict that many more will struggle next time around if the most trivial of diary mistakes or oversights put further pressure on the insurance market.

Very few of our senior judges have ever had to face any of these stark realities.

So we could end up with the terrifying scenario of firms going out of business and staff losing jobs due to the tiniest of errors.

Lawyers can no longer afford to be human.


  1. This is madness. The only conceivable explanation (not justification) can be austerity. As the economy recovers this process must be reversed before our justice system is broken beyond repair

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