CPD is not a strong point amongst solicitors.
I had a telephone hearing last week. It was unspectacular – the Defendant had failed to respond to Part 18 questions and I went for an Unless Order. It was disappointing not to receive it on the papers, but some Courts have an unwritten “no ex parte” rule.
The opponent decided to handle it cheaply and not instruct counsel. The hearing was very formulaic and procedural. I was very boring and took the Judge through the chronology of the claim and Practice Direction. I felt the Judge was nodding along and therefore hoped that it would end quickly. With the greatest of respect to the Defendant’s solicitor, his arguments were along the lines of:
- X will come out in disclosure;
- Y will come out during witness evidence; and
- Z is not within my client’s knowledge.
My arguments were all about costs, the need to narrow issues at an early stage, and the potential for settlement and thus avoiding the further use of the Court’s valuable and scarcely available resources.
I got the Unless Order and a few shiny pennies in costs. It is clear their Part 18 Replies will be written in blood and anger, so it was not a great day at the office for either side.
Did it end there?
No. Instead of being wrapped up, the following exchange took place:
Deputy District Judge: “Anything else gentlemen?”
Opponent: “I seek leave to appeal against your judgment Sir, and seek relief from sanctions”
DDJ: “I will need to know your grounds of appeal before I can decide whether to give permission, and you will need to explain why your client will seek relief from sanctions”
Opponent: “Um, I will need some time to prepare, but I consider you misdirected yourself on your decision regarding CPR Part 18. Also, I seek relief from sanctions as this is a sanction against my client and I need to apply promptly according to the decision in Associated Newspapers and Mitchell. I therefore ask for this application to be heard now.“
DDJ: “Permission denied. Part 18 is clear and I cannot see how I may have misdirected myself. Your application for relief from sanction cannot be heard at this time as we have already reached the 30 minutes for the current application. Further, while I will note your intention on the Court file, I think your client would be best served with complying with the Unless Order rather than using the same time to make an application for relief from sanction.”
It settled a couple of days later. I imagine the other side was out of their depth. It is not uncommon to come across 2-4PQ solicitors who have never attended court and have also never gone beyond a CMC or disclosure despite practicing litigation for many years.
I am very troubled over how Mitchell is being interpreted by some firms of solicitors.