DESPITE FAVOURABLE RULINGS ON AUTOMATIC STRIKING OUT, VIGILANCE IS STILL REQUIREDAfter a long wait, the Court of Appeal has heard a large number of test cases relating to CCR ord 17, r.11 and automatic striking out.

On the whole the decisions were more favourable for plaintiffs, solicitors and the Solicitors Indemnity Fund (SIF) than several earlier decisions had suggested.

But solicitors still need to be vigilant, to press on with cases urgently, to diarise key dates accurately, ensuring office systems are in place to monitor them, and to apply to the court in ample time if the timetable cannot be met for any reason.But loose ends remain.

What happens if the plaintiff requests a hearing date in time but is not actually ready? Is failure to pay the setting down fee fatal? Does the timetable still run when there has been interlocutory judgment? When exactly is the date of transfer from High Court to county court? Also, in Gardner v London Borough of Southwark the court said obiter that the defendant could apply for a stay until the costs of the first action were possibly paid -- a nasty sting in the tail for plaintiffs and the Legal Aid Board.The Law Society believes that the Lord Chancellor's Department should now complete the task, which it began over a year ago, to amend the rule.

These amendments should deal with all the loose ends and resolve the status of the N450 form.

It is logical to make it part of the rule, and for the court to notify the parties of the trigger and guillotine dates on the form.The losers from the striking out fiasco have been the litigants with good claims who have then had to sue their solicitors for the loss of a chance.

The winners have been defendants, often insurers who have avoided having to pay damages in many good cases.

Rules which prolong litigation in this way are not in the public interest.

Lord Woolf recognises this and in his proposed new regime for a fast track, automatic striking out would disappear and be replaced by trial dates fixed shortly after a defence was filed.

Striking out for failure to observe directions might remain, but on notice.

How to avoid striking out-- Put all dates in your diary.-- Keep a specific automatic strike-out back-up diary.-- Allow yourself a countdown period for observance of the dates.-- Consider whether the timetable is realistic and if not what changes are required.-- Apply to the court to vary the timetable.-- Apply to set down -- or for an amended timetable -- well before the 15 months expire and preferably within the first six-month period.-- Do not allow the fact that some of your current cases may be saved as a result of recent decisions to lull you into a false sense of security.-- Watch out for forthcoming amendments to ord 17.THE RULING WHICH WERE REPORTED IN THE TIMES ON 18 & 19 JANUARY 1996Having reviewed both the recent Court of Appeal cases and two earlier ones, the Solicitors Indemnity Fund sees the following points as being significant.

The starting date for the timetable -- the trigger date -- has been confirmed as the date of delivery of the defence to the court (Lightfoot v National Westminster Bank).

Where the court issues a form N450 apparently confirming a starting date which may ultimately be shown to be incorrect, and the plaintiff can show that he or she has relied upon such a date, the plaintiff may be entitled to have the case reinstated upon demonstrating that he or she was complying with a timetable based on that incorrect date (Williams v Globe Coa ches).

In these cases it is not necessary to overcome the draconian reinstatement criteria laid down in Rastin v British Steel [1994] 2 All ER 641.Where proceedings are issued against more than one defendant, the timetable will be triggered by delivery of the last defence to the court (Peters v Winfield).

Where the court gives specific directions, these will supersede the automatic directions, even where the specific directions create an open-ended timetable (Downer & Downer v Brough).

Also, where the primary limitation period has not expired, a second set of proceedings can be commenced despite the automatic striking out of the original proceedings (Gardner v London Borough of Southwark).

Only proceedings commenced after 1 October 1990 are caught by ord 17.

If proceedings are transferred to the county court from the High Court, the crucial date is not that of transfer, but the date of commencement of proceedings (Tarry v Humberside Finance Ltd).

There is an implied alternative application to set down within the 15-month period in any case where an application to extend the 15 months is made before expiry but heard afterwards (Carr v Northern Clubs Federation Brewery Ltd).

Where there is an application to set down within the 15 months, it is not necessary to demonstrate rigorous compliance with the various parts of the rest of the ord 17 timetable (see Ashworth v McKay Foods [1995] The Times, 16 November).

Whilst these rulings may result in threatened or potential claims disappearing, they must not give rise to complacency amongst plaintiffs' solicitors.

The Court of Appeal has reiterated its desire to enforce the timetable under ord 17.

In particular, reinstatement after expiry of the 15-month period will only be allowed where the plaintiff can show reasonable diligence as tested against the timetable in ord 17.

The plaintiff must also show a good excuse for missing the time limit in circumstances where a system to ensure compliance with ord 17 had been instituted and followed and had been the subject of additional early checks aimed at identifying human or systems errors.

It is absolutely clear that mere oversight or distraction by the difficulties of quantum will not do (Neville v Wright, Jackson v Slater Harrison, Russell v Dennis).