the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane


My sangfroid is always tested whenever an opponent smugly submits: “Well, X can always sue his solicitor”.


Really.  What use is that?  Jobs for the boys (and girls).  How is justice served by promoting satellite litigation?


In Sowerby v Charlton [2006] 1 WLR 568, the Court of Appeal approved a dictum of  Sumner J in Braybrook v Basildon & Thurrock University NHS Trust [2004] EWHC 3352 (a case of a mistaken admission of liability) that there is a public interest in avoiding, where possible, satellite litigation and the disproportionate use of court resources.  In other words, a solicitor’s error is a reason to grant relief, not refuse it (although it didn’t help the solicitor in Braybrook).


There is a formal echo of this principle in CPR 3.9(1)(f) which records that one of the factors to be taken into account in granting relief from sanctions is whether the failure to comply was caused by the party or his legal representatives.


In Welsh v Parnianzadeh [2004] EWCA Civ 1832, Mance LJ (as he then was), after finding that a fair trial was still possible, took into account that if the Claimant did not receive relief from sanctions arising out of her solicitor’s error, she would be reduced to a claim on a loss of a chance basis “not only suffering a real loss in the sense of being caused further delay and expense, but [in] also suffering a real reduction in the value of her claim”.


I fear however a return to the netherworld of unbridled smugness and barely concealed glee when a solicitor makes an error.  In Fred Perry (Holdings) Ltd v Brands Plaza Trading Ltd [2012] EWCA Civ 224), Jackson LJ had this to say:


“I should however draw attention to the forthcoming amendments to Rule 3.9. There is a

concern that relief against sanctions is being granted too readily at the present time. Such a culture of delay and non-compliance is injurious to the civil justice system and to litigants generally. The Rule Committee has recently approved a proposal that the present rule 3.9(1) be deleted and the following be substituted:


‘On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider the circumstances of the case, so as to enable it to deal justly with the application including the need –

(a) for litigation to be conducted efficiently and at proportionate cost; and

(b) to enforce compliance with rules, practice directions and court orders.’


“It is currently anticipated that this revised rule will come into force on

1 April 2013. After that date litigants who substantially disregard court orders or

the requirements of the Civil Procedure Rules will receive significantly less

indulgence than hitherto”.


And there will be a surge in satellite litigation, in my opinion.

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