By John Collins
This blog is addressed to solicitors and indeed to those who instruct counsel, particularly in relation to the fast-track trials and other proceedings such as small claims and indeed interlocutory matters. I feel that this is a timely Note, because thanks to the minimal remuneration which is nowadays given to solicitors (let alone counsel), solicitors are placed in great difficulty in dealing with claims of this kind efficiently. But, just as it is true that some cases are won by good preparation, so it is also unhappily true that many good cases are lost by poor preparation.
The object of this Note is to try to encourage the preparation of a tick list which should be followed in all cases. It may be that it would be more convenient to have suitable tick lists for each type of case. Some of the points that I make may well seem elementary, but I make them because they are habitually neglected or omitted. This is particularly so now that so much instruction of counsel is done by email. Whilst you can hope that your counsel will examine the papers closely within 48 hours of receiving them, if counsel is busy, he or she may not do more than glance at the papers before the night before the case is to be heard, by which time it is too late in practical terms with a 10.00 am hearing to do anything very much about any omission.
Instructions to counsel
Obviously, these will vary, depending upon the matters in issue, but:
- It is important to make sure that counsel is provided with all relevant documents. In particular, there should be included –
- all statements of case on both sides (including the claim form);
- all court orders;
- a copy of the numbered file as sent to the court.(There should of course also be a witness bundle in any case where live evidence is going to be called. Astonishingly, that is frequently forgotten.)
- Any relevant documents omitted from the brief sent to counsel or received after the brief has been delivered should be sent on immediately, preferably by email, to counsel, if need be to his or her private number. Equally, where documents from the other side, in particular, are expected, but not received (e.g. costs schedules), it is desirable to confirm that, either in an email or in an oral message to counsel.
All court orders should be complied with to the letter. With many nowadays, there is permission to obtain the agreement of the other side to a modest variation in the time for compliance. That timing should never be assumed, but should always be asked for and if indeed it is not given, an extension should be sought from the court. All court orders should therefore be diarised and, where there is a time limit, they should, if possible, be complied with by the day before the last day for compliance. If it is anticipated that it will not be practicable to comply with a court order, an application for extension of time or other provision must be made before the order expires.
If there has been a failure to comply with any court order, counsel should be informed in detail and an explanation given, preferably accompanied by a witness statement which counsel can put before the court. Obviously, if counsel is instructed to apply for relief from sanctions, that must be accompanied by a witness statement, and the witness statement should have been served as quickly as possible, once the need to apply for relief has become apparent.
If photographs have been taken, it is vital that counsel should be supplied with proper copies. It is useless to send counsel copies of photographs which look like mere silhouettes. Equally, if they are coloured photographs, counsel should have coloured copies. Care should be taken to supply the judge with such copies.
If counsel has given advice, whether in a formal opinion or simply a Note, it is vital to go through it paragraph by paragraph. If counsel has misunderstood the facts (as may be not unlikely), then a note should be sent to counsel to correct that misunderstanding and to enquire whether counsel wishes to alter his or her advice. If counsel has asked for information which, had he or she read the instructions sufficiently carefully, he or she would already realise that that information was there (as occasionally happens), counsel should be informed. If counsel asks for information which counsel already does not have, that should be supplied or prepared for the next time counsel is instructed. If counsel asks for steps to be taken, those steps should be taken unless there is a good reason to the contrary, in which case counsel’s further observations should be asked for. By acting on counsel’s advice, you go a long way to preserving yourself from subsequent claims for negligence.
JOHN M. COLLINS
9 February 2017