I do not believe that anyone can excuse the solicitors in Mitchell for failing to comply with the terms of the order. The real issues are whether the sanction was proportionate (something which we are repeatedly told by the courts we should seek to achieve), and whether it is right for the court to adjudge that justice in the individual case should take second place to compliance with the rules.
The latter is one of the most astonishing statements I have ever heard uttered by a court and it is extremely worrying. If it was only the solicitor in the case that suffered, then that is one thing. But the people who will suffer are the individual claimants who, even if they can show negligence, will end up with substantially reduced damages that will be further reduced by the effect of non-recovery of success fees to pursue those damages.
Tell me what was wrong with an unless order properly enforced, if not adhered to? One strike and you’re out is a nonsense and no way to run a civilised justice system.
I could go on about all the other ramifications, but they would fill a book. I am too busy completing back-up diary reminders for individual court directions for 100 cases to have time to do so.
John Hall, Tilly Bailey & Irvine, Hartlepool