Many solicitors are very knowledgeable on the law in relation to the particular cases they deal with, however, a lot aren’t that great on the procedural rules that apply to how the litigation is conducted. Nearly all civil litigation, from personal injury claims to building disputes, is subject to the Civil Procedure Rules (CPR). These rules change all the time so keeping up to date with them is imperative, especially in light of the Jackson reforms and the increased impetus on penalising litigants who don’t comply with the procedural rules.
Ignorance of CPR will be no excuse under the new regime and a failure by a party could seriously hinder the litigation and adversely affect the overall outcome. Knowledge of CPR is therefore vital to avoid this situation but it can also be used as a tool to gain a procedural advantage over the opposition.
Procedural advantages can be gained via many different provisions of CPR. A very important provision is that contained in CPR 12.3, default judgment. Where a defendant fails to file an acknowledgement of service or a defence and the time for doing so expires, the claimant can apply for a default judgment under this rule. If default judgment is granted, the claimant will obtain a judgment on liabilty, with quantum to be agreed between the parties or assessed by the court, normally at a disposal hearing. This is a huge procedural advantage to a claimant, particularly under the new regime where relief from sanctions for breach of the procedural rules is hard to obtain, especially after Mitchell.
There are other procedural advantages that can be obtained under the rules, this time from the defendant’s point of view. The use of CPR Part 36 and making early offers to settle could potentially pay dividends for a defendant when it comes to the issue of costs. Even if liability is in dispute, getting a handle on what the claimant can reasonably expect to recover and making a Part 36 offer can provide the defendant with strong arguments that their costs should be paid by the claimant once the period for acceptance has expired. Given that the normal practice is to litigate the secondary issue of costs, a tactical advantage stemming from an early offer could be invaluable in saving money in costs, which in many cases are far more significant than the damages received by the claimant.
It is certainly the case that knowledge is power, but it is not just knowledge of the law anymore that will mean a party is successful. Knowledge of CPR is vital for successfully conducting litigation. Many solicitors rely on old versions of the rules and don’t necessarily keep up to date with the changes, changes which occur all the time through amendments to the rules and through cases on the application of the rules. Emphasis should be placed on ensuring all fee earners conducting litigation are up to date and familiar with CPR and how to use and amply with the rules. Failure to do so could see a very adverse effect on the outcome of current and future litigation conducted by firms.
