Solicitors need to change their client care letters so as to protect themselves in the event of Mitchell-style problems that are not their fault, Professor Dominic Regan has advised.
He also urged solicitors to ensure that they make it clear to their opponents that they are open to ADR.
Professor Regan was speaking about new litigation tactics at last week’s conference in London organised by the Association of Costs Lawyers, in association with 4 New Square.
He said the “golden rule” was that at the outset of every matter, solicitors should write to their client “emphasising the need for their full, prompt consideration”. He continued: “Spell out the risk that delay/default could mean that their case, no matter how meritorious, could be dismissed on account of breach.”
He described this as “akin to life insurance for solicitors”.
Emphasising that “Mitchell is here to stay”, Professor Regan said the Court of Appeal’s follow-up ruling in Durrant was “much more extreme” – given the allegations against the police that the substantive case involved – and arguably put “procedure and default ahead of everything, including justice”.
Another lesson of Durrant was the need for solicitors to give themselves “breathing space” when setting timetables, he said.
More protection would come from telling the other side that you are “amendable to ADR”, he continued. This was the message of the PGF case last October, where the Court of Appeal established the principle that silence in response to an invitation to participate in ADR is itself unreasonable regardless of whether it amounted to a refusal, or whether there were reasonable grounds to refuse.
More broadly Professor Regan questioned how much life remains in the Halsey ruling in light of the courts’ moving in the direction of expecting parties to have tried ADR.
The academic also highlighted the continuing relevance of a filed budget even if the court refuses to make a costs management order.
He quoted Sir Rupert Jackson’s introduction to the White Book Supplement in October 2013, which said: “The costs budgets are still relevant, essentially taking the place of current [ie, pre April] estimate of costs in relation to assessment. The costs budget will then lead to consequences if there is a difference of 20% or more between the costs claimed and the costs budget.”