Defaulting Parties in Litigation – We are all at costs risk
Author | AmicusLaw
“Innocent parties” in litigation may now find themselves penalised in costs if they do not actively police defaulting parties
In re W – all the parties’ solicitors were penalised for their collective failure to ensure that case management decisions were adhered to, resulting in the waste of scarce court time.
Crucially, all the parties collectively failed to adequately check the documents that were disclosed by third parties. Had they done so, they would have realised that important documents were missing.
Such failures can be punished by wasted costs orders.
No matter how challenging the task, it is clear that lawyers and their professional clients are required to consider, in detail, at the earliest opportunity, not only documents that are disclosed, but also to identify and obtain any missing documents. More broadly, compliance with case management directions is essential, to guard against the risk of wasted costs orders.
Beyond that, everyone in a case, including the court, has a positive duty actively to manage the case.
‘There needs to be a more hands-on approach by all parties with regard to compliance with court orders. No party should be able to sit back as a spectator and watch non-compliance with orders and not shoulder any responsibility that flows as a result of those failures.’