Civil Litigation
Preventative Steps for Plaintiff Solicitors For plaintiff solicitors, this raises an important issue. Delay arises all the time in all sorts of guises. An essential focus point to watch is the delay which can arise between the service of a Plenary Summons and then the delivery of a Statement of Claim. If a delay arises here, it can be fatal to the case if left for more than a few months. Some practitioners may take the view that it is preferable to delay issuing proceedings until the Statement of Claim is ready. Where a Statement of Claim is delivered late, the defendant may consent to an extension of time; in the absence of such consent, it may be necessary to apply to the court for an extension. Given the short window provided in the Rules of Court between the entry of Appearance and delivery of a Statement of Claim, it is worth noting the timeline carefully. If you cannot deliver the statement of claim within the period provided, keep the defendant updated, deliver it as quickly as possible and with it send a letter asking the defendant to extend the time to file the Statement. Frequently a delay is caused when discovery, especially medical records, are required. In practically every personal injury case medical records are sought. If all records are required from every treating physician and hospital/surgery, this can take some time to assemble. One way that may assist in mitigating the delay in obtaining records is to copy the defendants with the letters requesting the records. Once a request has gone out, it is not sufficient to leave it there; reminders will be required – one rule of thumb is to send a reminder at least every thirty days in the absence of a response. It may occur to the reader that this work of sending reminders appears performative in nature. Another way to look on it is to see it as keeping the other side informed. It is doubtful that a court would look on an application for delay favourably where it is obvious from the correspondence that the plaintiff ’s solicitor has been doing all possible to move the matter on and comply with the defendant’s request for discovery and has diligently kept the defendant updated along the way. It is always open to the defendant to agree to proceed without such records or documents in the absence of their quick availability. 52 the Parchment
As well as this, it is a good idea to keep a note in your diary as plaintiff solicitor of when the last pleading was filed and diary forward for 11 months. If, on reviewing, there is still some good reason why the case is not ready to proceed, lodge a notice of intention to proceed as soon as possible. It is worth taking the time to ensure that the notice issued conforms with the rules. The issue of the notice in itself will not be sufficient to prevent the defendant from making an application to issue a motion to strike out, but it does show that the plaintiff is paying attention to the passage of time. It may be beneficial also for the plaintiff to send to the defendant a note of what is outstanding or what they are awaiting (where appropriate) along with the notice and confirmation of when the defendant can expect a further update. In addition, it is good practice as a plaintiff to keep the case moving. The duty lies with the plaintiff to bring the case on for hearing. Therefore, where the defendant is late in lodging an appearance or serving a defence, the appropriate course of action is to send a warning letter and to issue a motion promptly once the time provided in the warning has expired. It is also good practice to telephone the solicitors for the defendant to remind them that they are out of time and to ask if they require forbearance. While you need only make this courtesy call once, very often, it will prompt a quick response. It is worth bearing in mind that there is no obligation on the defendant to move the matter on. The Kirwan jurisprudence provides that the behaviour of the defendant will not count unless it constitutes misconduct.
Guidance for Defendant Solicitors An application to strike out for want of prosecution requires careful preparation and should not be undertaken lightly. Where there is no meaningful progress in the proceedings, it is prudent for the defendant’s solicitor to diarise the matter for periodic review, for example at six-month intervals. Once a period of significant inactivity has elapsed – the minimum time being two years, per Order 122 - the defendant can then assess whether an application is appropriate, having regard to the circumstances of the case. A single reminder letter to the plaintiff ’s solicitor