CASE STUDY: the "Plebgate"scandal – Andrew
Mitchell v News Group Newspaper Ltd. (The Sun)
Claims are fairly simple to establish and can be categorized as
a breach of contract or a tortuous breach. Contractual breach is
fairly self-explanatory: there was a clause in the contract which
one party to the contract breached. The remedies are variable
depending on the clause or clauses breached. A tortuous breach
usually involves negligence and three core elements:
there was a duty of care owed;
the duty was breached; and
a loss was caused to the injured party as a result of
The Andrew Mitchell defamation case is a recent example where
professional negligence could potentially be argued. The court had
given directions for certain deadlines to be met. Directions can be
anything from a deadline by which time the parties must disclose
relevant documents, to a deadline ordering the respective parties
to file and serve witness statements. In this case, a direction was
given as to when a costs budget should be filed with the court.
This is particularly poignant following this year's Jackson
reforms. Andrew Mitchell's solicitors failed to file this
document by a given date. The result was that the Court made an
order capping Mr Mitchell's right to recover his legal costs
(amounted to roughly Ł2,000).
We can identify the elements for proving a case of professional
negligence against Mr Mitchell's solicitors as follows:
DUTY: Mr Mitchell's solicitors owe a duty of care to their
client. The duty of the "reasonable man". In the case of
a solicitor (or any other professional) that duty is set to a
higher standard – the "reasonable man" becomes the
"reasonable solicitor". The test that the solicitor or
adviser is put to, is an objective one. If another lawyer (of equal
experience) was put in the same position, would he or she have made
the same mistake? If the answer is in the negative, then a client
who was wronged, may well have the basis for a professional
BREACH: Mr Mitchell's solicitors missed a deadline ordered
by the court. Do you think it reasonable for a solicitor to respect
such a deadline? If there was any doubt in terms of what the
consequences might have been in the past, there can certainly be
LOSS/DAMAGE: it is important to be able to show that the loss,
in a professional negligence case, usually pecuniary in nature,
flowed directly from the breach: the "But For" test.
"But for" the solicitors' mistake, would Mr Mitchell
have suffered a loss? If the solicitors had adhered to the
court's directions, no such restrictions on recovery of costs
would have been imposed – at least, not for the reasons given
in this case. Mr Mitchell has retained his legal advisers on a
no-win/no-fee agreement so for now, he will not be too upset about
the mistake. Ironically, the decision will really only have an
adverse effect in the event Mr Mitchell wins his case. Fees for
this type of claim could be in the hundreds of thousands of pounds
– fees he would have to pay out of his own pocket. That
burden would have fallen on the opposing side's solicitors in
the event of a victory. Damages for professional negligence are
supposed to put the injured in party in the position they would
have been had the negligence not occurred. If he is successful at
trial, Mr Mitchell could have a potential claim against his own
legal advisers for the fees he would have recovered from the other
side's solicitors had his legal fees not been capped.
On that analysis, what do you think? Were his lawyers negligent?
Would you sue your solicitors if you were placed in the same
position? Would your decision change depending on the outcome of
Most recently, the penalty for failure to comply with court
directions has been further emphasised in the Court of Appeal case
of Durrant v Avon & Somerset Constabulary .
Originally, the defendant's two applications seeking a relief
from sanctions was granted by Judge Birtles, who agreed to allow
eight witness statements to be served more than two months after
the original deadline. This decision was overturned by the Court of
Appeal citing the Mitchell case in its reasoning.
This firm has a broad experience of successfully negotiating and
settling professional negligence claims via out-of-court dispute
resolution methods. If you have a query with respect to a potential
claim for professional negligence, then contact this firm for a
free consultation for a limited time only.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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