What does this mean for you if you’re faced with a court case? Simply, it means that hiring a solicitor who does not have the expertise or the resources to run your case in accordance with the rules, can have catastrophic consequences:
Your claim or defence, no matter how strong your case, could be struck out.
Your chances of winning your case could be jeopardised by losing the right to rely on important, supporting evidence.
You might lose your chance of recovering any of your costs from the other side
Previous attempts at reform were diluted by subsequent court judgments. However, the recent cases of Mitchell -v- Newsgroup Newspapers  and Durrant -v- Avon and Somerset Constabulary  along with others, show that this time the courts will uphold the spirit and the letter of the rules.
1. Having your case struck out
The specific rule that governs the court’s response to a breach of the rules (rule 3.9 of the CPR), has been simplified and as the Mitchell and Durrant cases show, will be applied much more strictly than in the past.
Also, generally the rules have been amended to include more severe punishments. For example, each and every court case has a procedural stage, which requires all parties to a particular case to file a document with the court summarising their view of the case and the steps required to take it to trial (rule 26.3(1)). Under the new rules if your solicitor fails to file that document after having received a reminder from the court to do so, your claim or defence will be struck out in its entirety and you will be considered to have lost the case.
A solicitor who is properly prepared and working pro-actively on your case should never allow such a thing to happen
2. Not being allowed to rely on evidence
Under the new rules it seems clear that the courts want cases to be run along a strict timetable, agreed early in the case. The new harsher regime for missing court dates means that if your solicitor has not considered and prepared for the case at this early stage, he/she risks exposing you to at best, having poorly prepared evidence, or at worst, no evidence to rely on at trial.
in the Durrants case the Defendant was not allowed to rely on any of the eight witness statements it wanted to, including two that had been served one day after the original deadline.
Crucially solicitors acting for the Defendant did not make an application asking for the court for more time until two months after the deadline.
If useful evidence comes to light late on, a good solicitor will ensure that he applies to the court for more time straight away.
3. Losing the chance to recover your costs.
The courts are now also actively managing the costs of court actions. In multi-track cases (essentially cases worth more than £25,000) you are obliged to file a budget with the court, which sets out an assessment of the likely costs to be incurred at each stage of the case.
Failure to file a budget on the date specified by the court will mean that you cannot claim any of your costs from the other side (other than court fees), even if you go on to win all aspects of your case.
In the Mitchell case, Stephen Mitchell’s solicitors failed to contact the other side regarding costs budgets, or to file a costs budget 7 days before the first case management conference. They filed a costs budget one day before the court appearance.The ruling of the Court of Appeal means that of the £500,000 his solicitors estimate Mr Mitchell’s case will cost, he will be able to claim, even if successful, only a few hundred pounds in court fees.
A properly prepared solicitor would have prepared a budget well in advance of the 7 day deadline. Giving time to agree the budget with the other side if possible.
The Right Way To Approach Litigation
The Court of Appeal in the Mitchell case stated that “well intentioned incompetence” would no longer be accepted by the courts.
The first step you should take if considering court action, or faced with a claim against you is to instruct an experienced, specialist litigation solicitor, such as me.
I will ensure that you are provided with all the information you need to make informed decisions about how to proceed with a case, at the earliest possible stage. If you choose to issue or defend court proceedings I have the experience and expertise to know what each step on the case will require and what is a reasonable estimate of costs. I will also ensure that the court rules are complied with, in full and on time.
If you have a question concerning a case you would like to ask, please contact me.