November 2015 – Chris Hegarty

Another reminder that the court will take a robust stance on case management.

In this latest procedural hearing of the RBS Rights Issue Litigation [2015] EWHC 3433 (Ch)Mr Justice Hildyard balanced carefully (after traversing the authorities) whether additional expert evidence should be permitted – and, as he was not persuaded that it would assist the court, refused permission. Notably in such a large and complex case he did leave the door open for a further application following the permitted expert evidence as he could not be sure that the additional expert evidence should properly be excluded at this stage.

Further, that an effort to defer a trial date, an uphill struggle for any applicant, would require compelling evidence. RBS in seeking this blamed an overly extensive disclosure process and delays in proofing witnesses without sufficient evidence were nevertheless granted a very reluctant 3 month extension.

That reluctance reflected the significant nature of the case and in anything but an exceptional case the reasoning appears to have firmly come down on the side of refusing an extension.

The addendum to that permission was that Hildyard J is likely to start requiring that parties provide details of their witnesses and a brief summary of their proposed evidence (per CPR 32.2(3)) in order to more effectively manage cases. This appears an eminently sensible step especially if, like EDQs and Case Management Information Sheets etc, required to be exchanged prior to budgets will enable parties to budget more effectively.

The recent judgment of Minkin v Landsberg [2015] EWCA Civ 1152 is a major milestone for those lawyers wishing to work on an unbundled, or limited scope retainer.

Jackson LJ traverses the key authorities on the scope of a solicitor’s retainer and draws together (pp.38-39) the key issues to consider when drawing up terms for limited scope instructions.

Those issues include a reasonable element of cutting one’s cloth to fit the client. Therefore, the duty (p.38(ii)) to raise incidental matters is varied by the experience of the client (p.38(iii)) and certainly, for an inexperienced client the solicitor would be expected to raise issues which are apparent to the solicitor but the client may not be aware of. Whereas a more sophisticated client would not wish to pay for advice regarding risks which he is well aware of.

Pivotally (and remembering all those issues of the law of contract) the court was keen to stress that such limitations should be reduced to clear and unambiguous writing. Jackson LJ at p.41 gives possibly the most stern warning he can in that he considered himself unable to go behind the district judge’s finding of fact that a contract had been formed with an agreed limitation of scope – it seems that had this not occurred he would have been loath to find such a limitation without it having been reduced to clear writing. As a practical issue for a firm looking to take advantage of this it would probably be worth spending money on good counsel to settle standard terms in plain English as a risk management exercise.

The court appears to have been very conscious that modern access to legal assistance (this was a case regarding the old Legal Help scheme) requires lawyers to be able to accept instructions to perform a discrete task rather than a traditional retainer.

This judgment appears to be a major step forward for solicitors (and barristers) whose clients are not always willing or able to pay for a full service but can benefit from advice, drafting and advocacy from a lawyer at appropriate times.

The Law Society has published a Practice Note on Unbundling Civil Legal Services which outlines what it considers the necessary steps and, as in this case, stresses the importance of two key issues:

Is an unbundled service right for the client; and, if so
Is the scope of work being performed clearly delineated and understood by the client.

The first of these is familiar to any direct access barrister – if the client is not reasonably capable of handling the matter themselves then it is difficult to justify the appropriateness of providing unbundled legal assistance and must be considered very carefully.

The latter is more an issue of communication and whilst an unbundled retainer to, for example, “represent the client at an application hearing” may sound simple and clear it must be clearly spelled out what is involved. This is to ensure that the client knows exactly what their responsibilities are and what the lawyer will do. Taking this example, it must be absolutely clear who is responsible for:

Preparing the bundle
Preparing a skeleton
Communicating with the other side
Providing the court with notification that the lawyer is only acting as an advocate
Complying with the order made
Drawing up the order

Of these, the odd numbered items may logically be the responsibility of the litigant in person whilst the even numbered items would be placed on the advocate. However, when the person instructing the advocate is not another lawyer this cannot be left uncertain.

There are pitfalls in this kind of approach to providing legal services, but an acknowledgement at this level that it is acceptable is a major step forward.