Coming Off The Court Record – Wilson v Bayer Pharma AG (2022)
When a court case is issued, both parties have to inform the court of an address for service. If you are legally represented then this is usually the details of your solicitor. This is the address that the other party and the court will send important documents to in relation to the case.
In the event that the retainer is terminated, then the client or their new solicitors would normally file and serve a Notice of Change of Legal Representative (form N434) confirming that the client is now acting in person or the new solicitors have been appointed as alternative legal representatives.
In the event that the client does not agree to do so, then a solicitors can unilaterally make an application to come off the court record under the Civil Procedure Rules, part 42.3, which states:
- A solicitor may apply for an order declaring that he has ceased to be the solicitor acting for a party.
- Where an application is made under this rule –
- notice of the application must be given to the party for whom the solicitor is acting, unless the court directs otherwise; and
- the application must be supported by evidence.
- Where the court makes an order that a solicitor has ceased to act –
- a copy of the order must be served on every party to the proceedings; and
- if it is served by a party or the solicitor, the party or the solicitor (as the case may be) must file a certificate of service.
An application is usually supported by a witness statement from the solicitor. Evidence contained in the witness statement is likely to be legally privileged, so the contents cannot be disclosed to the other party.
The court was called upon to decide such an application in the case of Wilson & Others v Bayer Pharma AG & Others (2022).
The underlying case involved a hormone based pregnancy test called Primodos. Claims were bought by those alleged to have suffered injury (congenital malformations, miscarriages and stillbirth) caused by Primodos. Original claims against the First and Second Defendant (manufacturers and UK marketers) were discontinued but they could bring further actions in the event of a change of circumstances.
There were two sets of proceedings under the lead claimants Ms Sarah Wilson and Mr Andrew Forshaw. Over 200 claimants bought claims through the firm PGMBM Law Limited.
From January 2022, PGMBM terminated the retainers for over 180 claimants.
They made an application to come off the record, as well as for permission to discontinue the remaining 48 claims.
Firstly, the court made a distinction between “the contractual termination of the retainer and the court’s declaration that the solicitor in question has ceased to act”.
The court confirmed that it was unnecessary for it to adjudicate on the merits or reasons for the termination of the retainers.
However, the court made clear that “The bottom line, however, is that a court cannot normally (if at all) require a solicitor to continue to act for a party whose retainer he or she has terminated.”
If a client is not happy about the termination of the retainer, they have recourse by other means.
The court permitted the application on the conditions that PGMBM would:
- continue to act as a post box for the claimants until the end of the year without charge
- not seek to pursue any of the claimants for their costs incurred to date
They were conditions that PGBM had offered in support of the application to come off the record.
The court had noted that there no actual guidance in the rules on what principles were to be applied in such applications. The court also did not provide examples of when they could decline to make such an order.
The court were somewhat concerned about the procedure nightmare that would ensue if a solicitor, especially in large group litigation, were to come off the court record. But ultimately, it would be adverse to force a firm to continue acting where no retainer is in place and/or the relationship of trust and confidence has broken down.
CPR 42.4 also allows a third party to make an application for a solicitor to come off the record, for example if they have died, become bankrupt, ceased to practise or cannot be found.
It is important to come off the record at the earliest opportunity if you have ceased to represent a client to avoid any unnecessary delay or prejudice for the client in not receiving relevant and important documents from the court or opponent in a court case.
If you’re seeking legal advice relating to Court records please call our highly experienced Dispute Resolution team on 0808 271 9413 to talk through your situation with us. Alternatively, you can request a call back or get in touch online.