pnBlawg

the professional negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Professional negligence claims in the post-Mitchell era – a potential minefield

The tough approach to compliance with the CPR and court orders is really starting to bite and one result is bound to be more professional negligence claims where litigation has become derailed as a result of a party failing to comply and being refused relief.

Following Mitchell v News Group [2013] EWAC Civ 1537, save where breaches are “trivial”, a party seeking relief faces a high hurdle. Relief will only be granted with a good reason. Accidently missing a deadline as a result of pressure of work  - surely the reason for breaches in the majority of cases – is no such reason.

A further area where great care is needed is in varying a timetable set by the court. In the past, parties have frequently agreed to postpone the date for witness statements or agreed for a late statement to be allowed in. This week saw the judgment in M A Lloyd & Sons Ltd v PCC International Ltd [2014] EWHC 41 (QB). Turner J pointed out that CPR 3.8(3) prevents parties extending a deadline by agreement where a rule, practice direction or court order specifies the consequences of failing to comply. CPR 32.10 states that late witness evidence will not be permitted without the Court’s permission. The result is that parties are not able to agree to extend time for statements or (it seems) to accept a late statement.

The risk of not obtaining an order is that the Court later refuses to allow the evidence in at trial, even where the parties have agreed to it. It would be difficult to defend breach of duty in those circumstances.

But what of the solicitor who agrees too readily to the other side letting in a statement or evidence? Given the tough approach to rules, perhaps the reasonable solicitor is now required to take a more robust, bullish, and maybe even what might previously have been thought an unreasonable approach towards the other side…!

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