The recent decision of the Court of Appeal to limit the legal costs in Andrew Mitchell MP’s defamation case against The Sun will have widespread consequences. In that case his legal team failed to submit a budget on time, but the decision has been extended to exclude other documents filed late. If allowed to stand it will inevitably lead to more cases being lost on legal technicalities.
Is it right that a simple mistake that does not prejudice the other side should result in an unfair result?
Such decisions will lead to judges being viewed more and more as remote; handing down decisions that satisfy their own bureaucratic requirements, but not meeting society’s needs for a just system of dispute resolution.
The only recourse then will be to sue the lawyer who made the mistake. That is not always satisfactory.
Firstly, many claims are not only about money.
Secondly, no one wants to have to start a further long, expensive and stressful court process.
Thirdly, claimants are unlikely to recover as much as they would have done in the original claim. This is because professional negligence claims are complex. A successful claimant will need to show that the mistake caused a loss. Normally there is an element of doubt as to whether a claimant will win everything they have claimed - otherwise the case would not have been defended. Hence a claimant will effectively have to re-fight and win both the original case and the case against the lawyer. A claimant will need the best representation to overcome these two problems.
Fourthly, this change in the law will have the effect of some smaller firms with a track record of making mistakes going under, a further common complication in recovering losses in professional negligence cases. Whilst some may say that is a good thing, it will inevitably lead to increases in insurance premiums for all small firms. This will reduce the number of small firms, thereby decreasing the choice of law firm available and increasing the cost.
All this is good for those of us who are not prone to making mistakes and undertake professional negligence work. However, we doubt that it is good policy, especially if it is applied to litigants in person.