• Defendant that provided documents 25 minutes late lost case

A new case in the appeal court of the Queen's Bench Division has reinforced the importance which the courts attach to "unless" orders, after a case was lost because the defendant provided a draft amended defence and counterclaim 25 minutes late, warns Reynolds Porter Chamberlain LLP (RPC), the City law firm.

RPC says that the case continues the trend of the courts being reluctant to let a party in breach of an unless order off the hook (particularly an unless order made by consent, as in the instant case).

RPC explains that in the new case (Kevythalli Design Limited v Ice Associates Limited), the two parties agreed that unless the defendant provided an amended defence and counterclaim within two weeks the defence and counterclaim would be struck out. The Defendant's solicitor's fax arrived 25 minutes after the deadline and, on appeal, following the Defendant's unsuccessful attempt to have the effect of the unless order set aside, the court upheld the decision to strike out their defence and counterclaim, leaving the claimant at liberty to enter judgment on its claim.

Robert Lee, solicitor at RPC who acted for Kevythalli Design, comments: "The case acts as a stark warning to anyone in litigation proceedings to adhere strictly to unless orders. The court made it very clear that an order should be complied with as soon as possible after it is made, and that parties should not leave compliance with an order until the last minute and then expect the court to come to its aid if a deadline is missed."

"This important reminder comes at a crucial time, with litigation on the rise as companies fight their ground because of the recession. Companies and individuals who may not have much experience of being involved in litigious disputes should pay particular heed."

"Losing a case because of a small delay could prove very expensive, particularly when a lot of groundwork has been prepared."

Adds Alan Stone, Partner at RPC: "The strictness with which the courts demand that litigants keep to deadlines is of broader significance to lawyers and their professional indemnity insurers. If law firms lose a case because they missed a filing deadline there is always the risk that they could face a professional negligence claim."