Focus on: Mitchell


Email your opinions to editorial@barkerbrooks.co.uk In the past parties were allowed to drift along and miss deadlines. When


they did, then they would, for example, explain to the court that neither side was quite ready to disclose evidence and so get the judge to agree to a month's extension. With the only deterrents being a shouting at from the judge and being


ordered to pay wasted court costs (which would normally amount to no more than £2000) it was no wonder that some cases would drag on for what seemed an eternity. "And that's gone now," says Edwards. "So anyone in litigation should look


at how they conduct themselves, and they are going to have to be really careful to make sure that no-one is exposed to the risk, because the risk on the insurance side is the next thing to look at."


Staying insured Edwards' warning is one that has been echoed across the legal sector, with


James Field from defendant firm Triton Legal saying that negligence claims will from now on be brought for larger amounts than ever before. "Previously, the quantum of negligence claims relating to procedural errors


were often restricted to the limited cost of a court application to put matters right. From now on lawyers and their insurers can expect to pay more in compensation for negligence claims arising out of litigation errors," he says. As a consequence, insurance premiums could rise to reflect the feeling


that litigation departments will be a less attractive risk post-Mitchell. Field points out that firms can expect to have to undergo further scrutiny from their insurers, with diary systems being put under the microscope. "While most firms are now pretty good at keeping track of key dates such as


expiry of limitation or deadlines for service, an equally rigorous approach will now be vital for all other deadlines and procedural steps in litigation," he says. And insurers are right to fear higher negligence costs, says Edwards. From


previously paying small fines for wasting court time, firms may all of a sudden find themselves staring at a professional negligence case against them for the value of a case, which could be hundreds of thousands of pounds. "So the implication for law firms is that they are now more exposed. And


there are bound to be more professionally negligent cases – and that leads onto how the professional indemnity insurers look at the market," says Edwards. "For certain firms premiums are going to go up and for certain firms, if you have a particularly bad claim, are you even going to get insurance?"


Ignoring the warnings? Although the Mitchell decision has caught some by surprise, Exall says that lawyers should have been well aware that the stricter rules were on their way in.


The judiciary's plans over CPR


Back in March 2013, Lord Dyson, the Master of the Rolls, explained why, in the aim of achieving proportionality in costs, the courts would have to be strict with forcing lawyers to comply with CPR. In a speech to the District Judges' Annual


Seminar he said the following: "This may all seem rather harsh. It may certainly


appear to amount to a denial of justice to the parties. The court’s refusal to grant relief from a sanction, for instance, may appear to be a denial of the need to ensure that justice is done as between the parties. "Faced with an apparent conflict between


the need to do justice to the parties, to secure a decision on the merits, and the need to secure proportionality it is easy to see why the former might – and often has – prevailed. The courts exist to do justice: where justice and proportionality come into conflict, the former should be given greater weight. "Intuitively this seems obviously correct. After


all, is a judge not required by his or her oath "to do right by all manner of people, after the law and usages of this realm, without fear or favour, affection or ill will’? "Here lies the answer to the superfluity


question as well as the remit question. Dealing with a case justly does not simply mean ensuring that a decision is reached on the merits. It is a mistake to assume that it does. "Equally, it is a mistaken assumption, which


some have made, that the overriding objective of dealing with cases justly does not require the court to manage cases so that no more than proportionate costs are expended. "It requires the court to do precisely that; and


so far as practicable to achieve the effective and consistent enforcement of compliance with rules, PDs and court orders."


Claims Magazine/Issue 11/ 39


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