New Regime for Litigators

The Court of Appeal handed its judgement on the 27th November 2013 in the case of Andrew Mitchell MP v News Group Newspapers Limited which was heard on the 7th November 2013. It gave guidance on how strictly the Courts should enforce compliance with Rules, Practice Directions and Court Orders.

The message is clear that the litigators cannot sleep on their oars.   If they do they are unable to seek relief from sanctions pursuant to the Civil Procedure Rules Part 3.9 which provides:-

3.9 (1) “On an application for relief from any sanction imposed for a failure to comply with any Rule, Practice Direction or Court Order, the Court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need:-   

               (a) for litigation to be conducted efficiently and at proportionate costs; and  

               (b) to enforce compliance with the Rules, Practice Directions and Orders.”  

There is no need to consider the full details of the case.  If you wish to do so it is available at (2013) EWCA civ 1526.  It is suffice to say that Mr Mitchell’s solicitors failed to lodge and serve the costs budget as required.  As a result they are unable to recover their costs of almost £600,000 because the Court of Appeal dismissed their Appeal for Relief from Sanctions. 

The Master of the Rolls, Lord Justice Richards sitting with Lord Justice Elias confirmed at paragraph 60 as follows:- 

                “In the result, we hope that our decision will send out a clear message.  If it does, we are confident that, in time, legal representatives will become more efficient and will routinely comply with the Rules, Practice Directions and Orders.  If this happens, then we would expect that satellite litigation of this kind, which is so expensive and damaging to the Civil Justice System, will become a thing of the past”. 

Our normal practice was to warn our clients at the outset of their instructions that their responsibilities are as follows:-    

• You must give us clear instructions which allow us to do our work properly;

• You must not ask us to work in an inappropriate or unreasonable way;

• You must not deliberately mislead us;

• You must co-operate when asked;

• You must go to the Court Hearing when asked; and

You must pay your legal costs and disbursements as required.

Our responsibilities are as follows:-

•  We must always act in your best interest in pursuing your claim for damages and obtaining for the best possible results, subject to our duty to the Court; 

• We must explain to you the risks and benefits of taking legal action; and

• We must give you our best advice about whether to accept any offer of settlement

• We must give you our best advice regarding legal costs. 

We also provide our Standard Terms & Conditions of Business in duplicate for the client to sign and return to us together with a Client Care Letter. 

If the clients were in breach of their responsibilities we were able to terminate the retainer pursuant to Section 65 (2) of the Solicitors Act 1974 which allows solicitors to terminate the retainer as a “good cause”. 

Our new practice now is to request the clients to sign a Change of Solicitor Form at the outset of their instructions. If any client fail to co-operate with us we will be able to lodge the Form with the Court, advise the client and serve it on his opponents immediately to remove our Firm’s details from the court’s record. As a result thereafter the client will be acting in person.  

To comply with the new regime it is extremely important for all our clients to co-operate with us to enable us to pursue their claims efficiently and at proportionate costs.

If you would like any further information please do not hesitate to contact Ram Saroop on 01274 723858 or by e-mail ram@rdcsolicitors.co.uk