Law report: Lack of diligence by solicitors is unacceptable

Solicitors must understand that inordinate delay and a lack of diligence in the conduct of actions was totally unacceptable, and that orders of the court must be obeyed.

Lownes v Babcock Power Ltd; Court of Appeal (Lord Woolf, Master of the Rolls and Lord Justice Potter) 11 February 1998

The Court of Appeal dismissed the appeal of the plaintiff, Robert Lownes, against the refusal of a 14-day extension of time in which to serve a schedule of damages in his action claiming damages for personal injury against his employers.

The plaintiff's claim arose out of an accident at work which had left him a paraplegic. His trade union had instructed a firm of solicitors, who were extremely experienced in the field, to act for him. The writ was issued in 1990. In December 1993 a different partner in the firm took over the conduct of the case. In August 1996, after a complete failure on the part of the plaintiff's solicitors to serve a schedule of damages on the defendants' solicitors, they applied for the claim to be dismissed for want of prosecution.

An "unless" order was made by consent, giving the plaintiff's solicitor 28 days to lodge and serve a schedule of damages, in default of which the action would be dismissed with costs. The schedule was not prepared in time, and the plaintiff's solicitor applied for a 14-day extension of time in which to lodge it. The application was refused by the district judge, and an appeal to the High Court judge was dismissed. The plaintiff appealed.

Benet Hytner QC (Thompson's, Sheffield) for the plaintiff; Anthony Goldstaub QC (Whitfield Hallam Goodall, Dewsbury) for the defendants.

Lord Woolf MR said that the case had been properly conducted until the new partner had taken over in December 1993. After that there had been wholly unjustified and inexcusable delay.

If an "unless" order were not treated as a last opportunity to put a party's house in order, the court had no way of ensuring that its orders would be obeyed, and delays such as those in the present case would continue to occur. To allow the appeal would mean that parties could ignore orders with impunity.

Although the consequences of dismissing the appeal would be serious for the plaintiff, he would still get his proper compensation. In practice, the damages would be met by the plaintiff's solicitors' insurers rather than by the defendant's insurers.

It was the duty of the solicitors, as officers of the court, to do all in their power to see that the plaintiff personally suffered no more than was necessary as a result of their default. In such a situation the minimum that they should do was to ensure that the plaintiff received independent advice at the earliest opportunity. In the present case independent leading counsel had been instructed to advise the plaintiff, but it would have been preferable for him to have been instructed by independent solicitors.

Delays in cases such as the present had an effect not only on the plaintiff, but also on the costs incurred by both sides, and, where insurers were involved, the cost of premiums. The administration of justice was also affected, since the amount of court time taken up resulted in other cases being put back, and the reputation of civil justice was damaged. The message to the profession which should be heard and learnt was that the standard of diligence displayed in the instant case was totally unacceptable.