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Friday, 21 February 2014

The real scary Mitchell

There was a time when Mitchell referred to a scary family in Eastenders. 

Today the name brings terror to the heart of most lawyers.

I recently had a case involving a claim for Noise Induced Hearing Loss. There was a disagreement between my medical expert and the defendants’ expert as to the extent to which the loss was caused by noise. This is a very familiar scenario. The court had ordered the experts to have a discussion and prepare a joint report setting out exactly the basis of their disagreement. A deadline date was fixed for delivery of the joint report. The experts delayed, through no fault of either side’s lawyers. The date came and went. So we went off to see a judge. What would he do? Would he strike out both side’s evidence and call it a draw. In this country a draw means the claimant loses! He seemed to be very keen to strike someone out. But it was neither side’s fault so finally he extended the deadline date with great reluctance.

The very thought of both sides being penalised is almost too bizarre to be believed. But Litigation Futures report a case where a judge has done just that. In Porbanderwalla v Drawbridge Ltd both sides failed to file a costs budget. There was genuine uncertainly as to whether this was required, as the court’s notice was silent. Notwithstanding this the District Judge penalised both sides by limiting their recoverable costs to court fees only.

Not surprisingly both sides were as one when they appealed and the appeal judge set the order aside. Talk about bringing the justice system into disrepute!

And then there is the ‘well intentioned incompetence’ on the part of the court office. I have come across this twice in the last week. Last Friday I filed a Directions Questionnaire with a costs budget. The order from the court required it to be filed by 4.00 on 16th February – when I would have been in the middle of my Sunday Lunch. Now the rules deal with that and the date is interpreted to be the Monday.  But imagine if I made a similar diary error and missed something by a day. I would be off to my indemnity insurers.

In the second case a colleague issued a protective claim due to Limitation Issues and marked her covering letter to the court very clearly - SOLICITOR SERVICE. As you will have guessed the court served it anyway causing no end of stress in relation to service of additional documents within 14 days. Again this can be resolved by the court’s correcting its own error. But it would be catastrophic if the mistake was on our side.

The truth is that these things happen in the real world and the sooner the Judiciary and the Rules Committee realizes this, better for us all. This policy may well have worked in Singapore. I have no idea how many cases are handled over there.

But it is not working here. We are becoming diary managers not lawyers.

Please bring us back to planet earth.

1 comment:

  1. Absolutely crazy, particularly when set alongside the lamentable performance of the court service.