On Record

McCrack

If a solicitor intimates to another solicitor that they are on record for an individual (who has been served personally) but fails to enter an Appearance is it appropriate to send a 21 day warning letter for judgment in default to the supposed client directly?

Would people consider that improper? I can't find any rules to say otherwise.

Thanks for any views.

Tom Young

An Appearance in Court by the Agent solicitor then that defect is cured.

That said, a simple Notice of Change of solicitor can be filed swapping out the previous agent solicitor. The Appearance paperwork should be filed by the initial Agent but not necessarily subsequent.

Coming off record is regulated by Order 7, Rule 3 - case: O'Fearaill v McManus. Parties regulated by Order 15, Rule 13.

Fatal no. 21 day letter, subject to advices depending on what side of the case you'd be on.

Peregrinus

I'd think it's unprofessional, to say the least. If the party is represented by a lawyer who has been in correspondence with you, you'd need a very good reason to communicate directly with the party.

Tom Young

I agree. It happens a lot though. Particularly where litigants have managed to gain legal advice at the 11th hour.

McCrack

Thank you for replies, I am more concerned with getting judgement in default, if a defendant has been served personally and no Appearance entered and a solicitor after personal service on the defendant suggests they are on record yet do not enter an Appearance on behalf of their alleged client then to whom should/can the warning letter go?

Milk & Honey

McCrack wrote: »

Thank you for replies, I am more concerned with getting judgement in default, if a defendant has been served personally and no Appearance entered and a solicitor after personal service on the defendant suggests they are on record yet do not enter an Appearance on behalf of their alleged client then to whom should/can the warning letter go?

The letter could be sent to the defendant only, but the grounding affidavit for judgement should mention that a solicitor had been in contact. Not telling the court about a relevant matter is misconduct. Most courts would insist that the solicitor also be served, as the solicitor may have overlooked it and the client would be prejudiced by a factor outside his control. The best thing would be to sent the warning letter to the defendant and cc it to the solicitor who was in contact.
There is also the fact that not doing that and getting judgement in default might embarrass the solicitor and cause problems. It is not very collegiate to do that and leaves a lot of bad feeling.
The next time, it might be you making a mistake, and he is on the other end of it!

Pat Mustard

I agree with Milk & Honey, except that I wouldn't choose to refer to the other solicitor in the affidavit, in those particular circumstances.

There are two things to worry about, legal procedure and professional courtesy.

In my view, even if the solicitor for the other side has indicated that he acts for the defendant, he has not formally come on record by entering an appearance.

Therefore, a motion for judgment in default of defence will have be served on the defendant directly.

However, in my view, professional courtesy dictates that copy correspondence should be sent to the other solicitor, at a minimum.

I would suggest that before going further, a letter should be sent to the other solicitor, asking him to enter an appearance, such letter indicating that in the event of his failure to enter such appearance, proceedings and necessary correspondence (warning letters) would be sent directly to his client.

Matters could proceed from there.