Defendants – how to lay banana skins for Claimants using Jackson & Mitchell

It’s only fair that Defendants can use Jackson and Mitchell to fight back against Claimants.

(1)    “Your statement of case is defective for the following reasons…

This tactic can be advanced as either the pleadings being wholly defective, or requiring a small amendment. Either way, get them to incur the costs of amending their claim.

As a Defendant, you cannot change the pre-issue costs, however you can influence the Claimant by forcing them to increase their costs “of Issue”.

Look very closely at the Particulars of Claim. Cross-reference these with the black letter law and see if the Claimant has erred. If so, write to them placing them on notice of your intention to make an application to strike out all or (more likely) part of their statement of case. Proceed with the application if necessary and seek your costs.

This will either (1) result in the Claimant incurring costs of amending the Particulars of Claim, with a possible duplication of Counsel’s fee, or a notable amount of costs of amending and reporting to their client; or (2) allow you to obtain the costs of your application to strike out part, or all of, the Claimant’s claim.


(2)    “Your Reply to Defence introduces new pleadings that should be contained in your Particulars”

Do not fall for the argument that a Claimant may put forward, that you can make a further response by way of Rejoinder.

Insist that their Reply does not clarify an issue; if they have advanced a new pleading and used an extensive Reply, then make sure you force them to withdraw the Reply and amend their Particulars of Claim.

This will cause the Claimant to incur the costs of amending their Particulars (see Number 1 above), and you can also obtain your costs of amending your Defence. This will, again, increase the Claimant’s costs “of Issue”.

It may be that you have to make an application for the above, which I would suggest is made for hearing at the first CMC. 


(3)    “Your proposals for standard disclosure are excessive and unreasonably wide”

Take control of disclosure. If the Claimant’s disclosure report is for a standard dispute (i.e. not likely to have much electronic disclosure) then set out the requirements which are, in your view, reasonable for disclosure.

Have a w/p discussion and require your opponent to explain what documents they hold on their file of papers. There is a professional conduct requirement for the parties to adopt a collaborative approach in proceedings.  Impress upon the Claimant the need to identify what documents they currently hold, including the format in which they are held, and whether they need to incur any further work.

Consider the likelihood that the Claimant has front loaded. They are likely to have printed off all of the documents and collated a large number. The disclosure exercise should be conducted by a Grade C or D fee earner. The time to place these in a sensible format should be undertaken by support staff or a junior fee earner, with some time at Grade A or B rate to check the documents.

What you want to force is the position where the key documents are produced and listed in a short N265 document. The time dumping incurred by a Claimant is normally for peripheral documents, therefore unless you have good reason for suspecting that there will be attempts to hide detrimental documents, try and agree limited standard disclosure relevant to the key issues.


(4)    “Your proposed directions are agreed” or “Save for the slight amendment to XYZ, the proposed directions can be agreed”

Wherever possible, try and avoid the costs of a CMC.

Claimant’s build up the costs of CMC’s by incurring the costs of:

  • Preparing the case summary
  • Drafting the chronology
  • Negotiating the bundle with the Defendant
  • Collating the documents for the bundle
  • Instructing Counsel to attend the CMC
  • Plus other linked activities which increases costs


(5)    “We disagree with the Claimant’s Precedent H figures, assumptions and contingencies”

Get your punches in early, hard and low.

Your arguments will be:

  •  The matter can be handled by a more junior fee earner
  • (If Counsel is involved) then attack the need for supervision within the firm
  • The time spent to date is excessive and disproportionate, therefore if the court fails to use the opportunity to limit the Claimant’s future costs then they are likely to become out of control
  • The pre-issue costs are a guide to the Claimant’s time dumping on the file and symptomatic of the Claimant’s solicitors handling of the claim to date; the court cannot be seen to be allowing standards to slip
  • The Claimant is making assumptions that the Defendant will make errors at every hurdle. (If you have not made any procedural errors to date, then state that there is no evidence to support this assumption and it is therefore unreasonable)
  • The contingencies are wide ranging and merely applied to give the Claimant some leeway if they are capped on other stages of litigation.
  • The expert fees are excessive (this is always true!)
  • There is no evidence that the Claimant has sought quotes or estimates from Experts or Counsel. Unless the Claimant can produce some evidence that they have tendered for the most economic Expert or Counsel, then their figures should be challenged.
  • Argue duplication.
  • Attack unnecessary conferences with Counsel or Experts. Press for the use of telephone conferences if the court allows a conference.

If you succeed in reducing the Claimant’s budget by a substantial amount (say 25%+) then seek your costs of the hearing. This should particularly be the case if your own budget is upheld or only slightly reduced.


(6)    “You have failed to produce evidence of…”

Claimants will inevitably make mistakes. I have seen Claimants fail to include items such as invoices in their N265, which meant they could not produce documentary evidence in respect of quantum.

If something like this happens, look to strike out the claim. Get them struck out immediately – do not mess around with an Unless Order.

Hopefully by this point, the Claimant will just be looking to settle on best terms or willing to accept a drop hands. The trick is to make life as unpleasant as possible for them. Do not become purely reactive like too many Defendant solicitors appear to behave.

If you have only skimmed this article then take away the following:

(i)                Force Claimants to amend their statements of case;

(ii)              Seek your costs of responding to their amendments;

(iii)             Agree most things where possible and limit disclosure costs;

(iv)             Be aggressive at the Costs management conference; and

(v)              Go for strike out when the Claimant makes an error on disclosure (the biggest area) or drops a clanger on another   procedural point.


Over and out.

Legal Orange.




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