The Victorian Court of Appeal has sent a clear message to lawyers (particularly plaintiff lawyers) in the habit of routinely ignoring court ordered litigation timetables. This case concerned a plaintiff who alleged she was injured when she slipped and fell on a driveway while delivering food to an elderly woman.  She sued the elderly woman and the council which employed her. 

Almost five years after her fall, four months after expert reports were to be exchanged and immediately before the commencement of the trial, the plaintiff’s solicitors obtained an expert report from an engineer regarding the condition of the driveway.  As well as being very late, the report failed to set out the path of reasoning followed by the engineer to arrive at the opinions he expressed.  It was therefore ruled inadmissible and the plaintiff was left without any expert evidence. Counsel for the plaintiff applied for an adjournment on three occasions during the course of the trial so that a further expert report could be obtained. 

In circumstances such as these experienced defendant lawyers are accustomed to seeing Courts granting indulgences to plaintiffs. However, on this occasion, the trial judge was not prepared to indulge the plaintiff and the trial proceeded with the jury eventually finding for the defendants.  The plaintiff appealed on the grounds that her three applications for an adjournment were wrongly refused.  The Court of Appeal rejected this argument and endorsed the approach taken by the trial judge.  It was held that the conduct of the plaintiff’s solicitors in ignoring the court’s direction was contrary to their obligations under the Civil Procedure Act 2010 (Vic).  The Court of Appeal went on to give a very clear message that such conduct will no longer be tolerated: 

If there is a perception among plaintiffs’ lawyers in personal injuries litigation that they need not comply with court directions which require steps to be taken before mediation, including seeking expert reports, or a practice of not doing so, such a practice is in our opinion contrary to the overarching obligations.  It is no excuse that ‘no win, no fee’ lawyers wish to see whether a case settles at mediation before spending the necessary funds required to comply with court orders. 

Eaton v ISS Catering Services Pty Ltd

It is apparent from this and other recent decisions that courts have become increasingly intolerant of litigants and their lawyers failing to strictly adhere with court ordered timetables without good reason.  This is a welcome development which is likely to result in fewer delays and more productive mediations.