Is a solicitor under a duty to warn their client of risks falling outside their retainer?
Two questions invariably asked by prospective clients who are considering bringing, or who have no choice but to defend, a civil claim are:
It is assumed that bringing/defending civil proceedings will always be a lengthy and costly process, but it doesn't need to take as long or be as expensive as you may fear.
In September 2015 the Shorter Trials Scheme (“STS”) was introduced to run as a pilot from 1 October 2015 to 30 September 2018 for cases in certain sections of the English High Court - the Commercial Court, the Technology and Construction Court, the Chancery Division and the Mercantile Court.
The stated aims of the STS include:
Key components of the STS are:
The STS will not usually be suitable for cases involving allegations of fraud/dishonesty, requiring extensive disclosure and/or reliance on extensive witness/expert evidence, or involving multiple issues/parties.
You might think that the STS is only suitable if the value of the claim is below a certain threshold, however, that is not the case. Take 2 recent examples.
National Bank of Abu Dhabi PJSC v BP Oil International Ltd  EWHC 2892 (Comm) (18 November 2016)
This was a compensation claim brought by a commercial bank for breach of warranty and representation in which judgment was given in favour of the claimant in the sum of over US$68 million plus interest plus costs.
The claim was issued in March 2016. There was very limited disclosure and no witness statements or oral evidence and the trial lasted just one day in November 2016. Judgment in favour of the claimant was handed down within two weeks of the trial. The total costs of the action up to and including trial were estimated to be approximately £350,000 on each side. In her Judgment the Judge said: “The parties and their lawyers are to be congratulated for the co-operative spirit in which the litigation has been conducted which has resulted in an effective and speedy process, all as envisaged by the Shorter Trials Scheme.”
The Defendant appealed and under the STS procedure permission to appeal the first instance decision was expedited. At the end of July 2017 the Court of Appeal allowed the defendant’s appeal. So from the issue of proceedings to the decision of the Court of Appeal this case lasted 17 months. Compare this with non-STS matters in which appeal hearings in the Court of Appeal are currently being listed approximately 18 months from now!
Vitol S.A. v Beta Renowable Group S.A.  EWHC 1734 (Comm) (07 July 2017)
This was a contractual dispute in which the claimant claimed US$651,240, alternatively US$351,830. Proceedings were issued in early September 2016 and under the STS there was limited disclosure and limited witness evidence. The 2 day trial took place at the end of June 2017. Judgment was handed down within 10 days of the conclusion of the trial in favour of the claimant for the lower (alternative) sum claimed. Costs are estimated to be approximately £125,000 (for claimant) and £63,000 (for defendant).
Being involved in court proceedings can take up a substantial amount of management or personal time which most businesses and individuals can ill afford. So, provided the case you are involved in does not include allegations of fraud or dishonesty, does not require extensive disclosure and/or reliance on extensive witness/expert evidence and does not involve multiple issues/parties, you and your lawyers should consider taking part in the STS in an attempt to achieve an earlier outcome and to reduce costs.
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