I write in response to the letter from Howard Shelley about civil litigation post-Mitchell. I do not agree with his suggestion that ‘aggression will trump co-operation’ nor with his reasons for that conclusion. Compliance one day late is not likely, I suggest, to lead to an application to strike out or something equally draconian.
The judgment in Mitchell actually states that something like one-day lateness is more likely to be considered trivial; and it might be the aggressive reaction to strike out that is viewed as unreasonable and thus fails – probably with costs consequences for the aggressor.
I am semi-retired, but in my early years did quite a lot of county and High Court civil, divorce and other family work. It amazed and annoyed me that opposite parties could get away with delays and inactivity. Registrars (to show how old I am) and district judges kept giving second, third and fourth chances.
The defendant was better off not having a solicitor until he felt he needed one, and was thus in a position to plead ignorance and get more time. It seemed the opposite party was getting tacit judicial approval for lack of discipline and getting away with it until the last minute. Parties and their solicitors who understood this could play the system.
I tended to comply with time limits and wondered if I was just being too much of a goody-two-shoes. I did it partly because some registrars and district judges were tough, saying things like ‘I don’t make these orders for fun…’. So if you were not careful you would be the party to suffer and have to explain it to your client.
If I could comply with the time limits and other requirements as a sole practitioner I do not see why firms generally cannot. Post-Woolf, you get your act together before you start and not as you go along, or finally when you have to.
To me, Mitchell is putting right a problem that has gone on for years. I am aware this is a direct criticism of other members of the profession. Some are saying they will pack in this type of work. If they do not want to play any more they do not have to.
A final idea for Mr Shelley: the aggressors might find they are the ones to get their fingers burnt or get more severe burns than that.
That might be the next swing of the pendulum: and that might be the next scenario the court in Mitchell had in mind when carefully detailing the new rules.
David Mclean, solicitor, Walsall