Friendly fire

If solicitors for the claimant proceed quickly in the client's interest they run the risk of criticism, or, worse, from more than one quarter with the client, the opponent or the judges all having their take on the appropriateness of the course of action that has been pursued.

The client may object because they perceive that too much expense is being generated unnecessarily early. The opponent may say that you are not complying with the rules and the protocol requirements. Judges will be concerned to ensure that every possible step is taken to reduce the traffic through the courts. Lastly, the costs judge will focus on whether costs are being incurred too early or unnecessarily.

There are also problems if claimants' solicitors are slow to act '“ they run a number of risks. For example, the defendant may pull every trick in the book '“ and some new tricks '“ to defer or avoid confronting the demands of the claimant and/or satisfying a judgment. There is also the concern that the defendant may run out of money or rearrange his assets to frustrate enforcement.

There is a further risk that witnesses, selfishly, become forgetful, or emigrate, or die. Add to this documents that disappear, crucial employees or witnesses moving on, or becoming unenthusiastic about giving evidence, and you can see how easily issues mount for the slow-to-act claimant's solicitor. Finally, there is the risk of the claim becoming statute-barred and, for whatever reason, the claimant losing the opportunity to recover.

A new risk

There is nothing new in the suggestion that a failed claimant might attack his own solicitor for being slow. Frequently, the delay results in loss of the opportunity to obtain a judgment, but it could be a loss of opportunity to recover: in Pearson v Sanders Witherspoon CA (Civ Div) 1999, the claimant obtained his judgment all right but by the time he did so, after long delay by his (former) solicitors, the original defendant was bust and he could not recover. What seems to be new is the risk of attack by a client who has succeeded, but not as soon as he expected.

In this time of recession and falling property values, a claimant who succeeds at trial (or along the way) and recovers property or funds, (or the freedom to dispose of them) may then complain that he should have been successful much sooner. He may assert that he should have recovered a year or two earlier when his asset was more valuable and, as a result of what he now says was delay by his own (successful) solicitor, he has suffered a drop in the value of his asset. If he had recovered the asset a year or two earlier he would, of course, have successfully realised it then and been much better off.

Since litigation began defendants have always needed infinite time, and courts have always been indulgent about granting defendants' requests for time. Since 1999, the fixing of trial windows has helped to limit delay from the case management conference (CMC) onwards but the process before the CMC has had additional delay built into it with the requirement to comply with the protocols and any alternative dispute resolution attempts.

What springs to mind is a nightmare mix of analogies: tightropes, thin ice, frying pans and fires. The unpleasant reality is that whatever the speed at which you, the claimant's solicitor, proceed will be wrong for someone.

Ensuring success and avoiding attack

So, how do claimants' solicitors ensure both that they succeed and that they are not attacked for being too slow about achieving success? Here are some pointers that may help.

First, you should always keep the client informed, in writing, of the likely/stipulated timetable, and of any changes or delay. Try to avoid contributing to any delay yourself. When it comes to protocols: ascertain to what extent '“ in your particular case '“ compliance is necessary; do not waste time on unnecessary or excessive 'compliance'. As soon as possible, give the defendant all he needs to respond to the protocol letter. Do not agree to any delay in the process or any extensions of time without express instructions, in writing, from the client (or at least confirmed in writing) demonstrating informed consent. Do not consent to any order for extension of time without your client's consent on the same basis. You should try to make positive and intelligent use of part 36, but do not let part 36 exchanges interfere with the timetable.

Also, always try to negotiate with enthusiasm but do not allow the negotiations to accidentally or deliberately stretch the timetable. Genuine negotiation need not take much time; those who demand time for negotiating may be doing no more than cynically extending the timetable to their client's advantage. And, finally, never forget that even a successful client may be disgruntled if he thinks that he recovered his asset more slowly than he expected.

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