Professional Liability, Other Areas of Law
Claims against solicitors and the “new” CPR 3.9

CPR 3.9 ‘Relief from Sanctions’ is being entirely reformed. From the 1st April 2013, gone will be the checklist which is to be replaced by a much broader discretion as to whether to grant relief, with the judge specifically referred to the need for litigation to be conducted efficiently, at proportionate cost, and with a need to enforce compliance with rules, practice directions and orders.


Lord Dyson, the Master of the Rolls in a speech last week argued that when considering applications for relief, for too long the courts have erred on allowing the principle of individual justice to trump any real consideration of the effect that this may have on the system of justice or upon other court users. He quoted Lord Justice Jackson in Mannion v Ginty [2012] EWCA Civ 1667 at [18] as referring to ‘a culture of toleration of delay and non-compliance with court orders’ in the civil justice system, and suggested that the new CPR 3.9 will end this ‘culture’.


The Master of the Rolls suggested that the more robust future attitude to rule-compliance and relief from sanction is intended to ensure justice is done. However, the new CPR (by its new Overriding Objective) seeks to define a different acknowledgement and achievement of justice.


The message is clear. Parties can no longer expect indulgence if they fail to comply with procedural obligations, and that efficiency, proportionality and consideration of other litigants and court resources are to constitute new cornerstones to this ‘different justice’.


One potential outcome of this reform is likely to be a rise in the number of discontented litigants whose cases have been struck out or detrimentally altered (for example, by being precluded from relying upon late evidence). With such discontented litigants may well be a rise in the number of professional negligence claims against solicitors.


Knowledge and compliance with rules of the court has long been held to amount to a tortious and/or contractual duty owed by a solicitor to a client (see, Godefroy v Dalton (1830) 6 Bing 460 at 467 per Tindal CJ or Frankland v Cole (1832) 2 Cr. J, 590). It is accepted that should a case be struck out or otherwise hamstrung by the delay of a solicitor, there is no defence to an action for breach of duty unless the client caused or consented to the delay (see, Reggentin v Beecholme Bakeries Ltd [1968] 2 QB 276 at 278C, where Lord Denning described that it would be ‘almost inevitable’ that the solicitor would be at held to be fault).


Whereas currently (at least until 4pm tomorrow), a defaulting litigant runs the risk of relief from sanction not being afforded to them by the court, this outcome is relatively rare. The most usual sanction routinely faced by a solicitor of such a party who was responsible for this delay and need to claim relief, is an order to pay wasted costs.


From 1 April 2013, the stakes are much higher for solicitors who – for whatever reason – are to blame for sanctions being imposed against their clients, such as by failing to meet court or CPR-imposed deadlines. The implications for the solicitors are obvious and also (of course) potentially extremely significant.


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