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Litigation – Sitting on Your Hands is a Good Way of Ensuring Defeat!

In litigation, the Court provides directions. These are effectively a timetable of what the parties to the litigation must do and the date by which it must be done. This is to ensure effective case management for the court and the parties.

If one party does not adhere to directions, the court can strike out that parties defence or claim of their own volition. Sometimes, the aggrieved party will make an application to the court for an Unless Order - which means the court orders the offending party’s claim or defence will be struck out UNLESS they adhere to a further direction giving a strict time limit to apply.

Bad case management loses cases. A law firm has no excuse as to missing directions, indeed, it is professional negligence to do so.

Every step in litigation is subject to rigorously enforced time limits and sitting on your hands when faced with a claim is simply not an option. Developers found that out to their cost when their failure to act promptly resulted in the forfeiture of their right to defend a substantial breach of contract claim.

The developers and project managers that they had engaged to assist in a proposed development had each accused the other of wrongfully repudiating the contract. The project managers launched proceedings, claiming damages and unpaid fees. The developers, however, did not serve a defence to the claim within the time permitted by the Civil Procedure Rules.

The project managers had agreed to a brief extension of the deadline, but that date also came and went without any defence being served. The developers made an eleventh-hour application to the High Court to extend the deadline but that was declined and a default judgment was entered against them. Another two months passed before the developers finally purported to serve a defence.

In refusing to set aside the default judgment, the Court noted that there had been a complete absence of explanation, let alone excuse, for the relevant delays. On the available evidence, the developers in any event had no realistic prospect of defending the claim in principle or in succeeding in any counterclaim. The amount of the project managers’ award remained to be assessed.

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MLA 2017 18 Shortlisted 2