Who would have thought the day would come that barristers and solicitors specialising in the Immigration Tribunals would have to dust off the White Book and grapple with the County Court?
Immigration solicitors, especially those dealing with unlawful detention and civil penalty claims, are finding that their clients’ cases are being heard in the County Court. A shock awaits those who have become used to the flexibility of the Tribunal, and assume that the same rules apply in the County Court.
The solicitor dealing with the claim will need to strictly follow court directions otherwise the penalties can and will result in their client’s case being struck out.
The rules are strict and inflexible in the County Court, in stark comparison to the Immigration Tribunal. Behaviour that is routine in the Immigration Tribunal, such as late service of bundles and missing deadlines, will not be tolerated in the County Court and will result in sanctions. One cannot turn up to the County Court having missed a deadline and then ask the judge on the day to be excused for filing a crucial document so late in the day.
In the County Court, you must comply with the Directions Order once the case is allocated to its track. The harsh principles laid out in the cases of Mitchell and Denton highlighted a regime that is designed to be draconian, and to punish legal representatives who fail to comply.
If you miss a date in the Directions Order then you have only 28 days for a mutual agreement of extension between the parties.
If this further deadline is also missed then you will have to make an application to the County Court under CPR 3 for Relief from Sanctions - but do not assume that you will get relief. It is extremely hard to obtain this, and factors such as awaiting grant of legal aid are not accepted as good reasons for missing deadlines. Failure to comply with directions will not result in a mere slap on the wrist: it is more than likely that you will be limited to court fees only, or worse still, that your client’s case will be struck out of court, with a professional negligence claim against you.
There are a number of important factors to consider in the County Court, including:
- Time frames for service e.g. do you need to seek an extension of time for particularising the claim in order to obtain expert evidence?
- CPR Part 18 requests for further information.
- Requests for specific disclosure under CPR Part 31.
- Witness evidence.
- Expert evidence.
- Alternative dispute resolution and Part 36 offers.
- Preparation of the costs budget and for trial – this is an extremely important document that MUST be completed, signed by the solicitor and served in time, otherwise even if you win you will be limited to court fees only.
A final note is that extra consideration must be given to the costs budgeting exercise.
Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) introduced cost budgeting to enable the court to control litigation costs.
Detailed budgets need to be prepared at an early stage and agreed with the other side. The Costs Draftsman will be able to assist with drawing up the budget but you must do it in good time so that you can discuss it with the other side. Involve the barrister who will be attending the Costs and Case Management Conference (CCMC) as early as possible.
If the budgets cannot be agreed, be warned that a judge will go through each estimated item and reduce what you can claim in the event of winning and claiming. It is in your interests to agree it.
Once this costs budget is agreed at the CCMC, if you need to go over it then you are entitled to make an application to the County Court to re-assess your costs budget. However, be sure to do this before
you carry on working over your costs budget or you may not be awarded your full set of costs at the end of the case.
Author, Nilma Shah is a solicitor in the Litigation, Personal Injury and Clinical Negligence department at Duncan Lewis with over 4 years post qualification experience. She is experienced in a mixed litigation case load including fast track and multi-track claims, and extensive experience in dealing with a wide range of litigation matters including professional negligence, landlord and tenant disputes, debt recovery and contractual disputes matters.
For expert advice call Nilma on 020 3114 1274 or email her at firstname.lastname@example.org.
Duncan Lewis Civil Litigation Solicitors
Duncan Lewis is one of the leading solicitors in England and Wales offering expert litigation and alternative dispute resolution services offering expertise in ADR & Mediation, Bankruptcy, Banking & Finance, Company & Commercial, Contentious Probate, Defamation, Debt Recovery, Fraud, International, Property and Professional Negligence.
The firm regularly handle claims at the County Court as well as high-value claims at the High Court, the Commercial Court and the Court of Appeal.
If you have a litigation issue which you wish to discuss in confidence, please do not hesitate to call us on 0333 772 0409