One obvious concern about the Mitchell fallout is the position of Indemnity insurers. This is reflected in a piece by Hill Dickinson. The observations need to be noted.
HILL DICKINSON’S POST
There is a succinct summary of the decisions in Mitchell, Durrant and later cases at http://www.hilldickinson.com/publications/insurance/2014/january/the_post_mitchell_fall_out.aspx
However a major point of interest is the discussion of the long (or even short) term impact on the ability to obtain insurance premiums.
“More worrying for some legal representatives, are some of the comments being made by the courts about standards of representation and the consequences those comments could have both in terms of professional negligence claims following failed litigation or conceivably even the availability of professional indemnity insurance at renewal. The solicitors’ professional indemnity market has become notoriously difficult for some firms – leading to some being unable to continue in practice due to either unavailability of, or high-priced, insurance. In a harder market, and following last year’s civil justice reforms, insurers will be looking for evidence of their policyholders employing efficient case management systems and risk management processes. They are unlikely to be impressed by solicitors being criticised in court, as those inMitchell, Durrant and Adlington were, for incompetence or lack of organisational skills.”
We have been used, for some time, to a process of “defensive medicine”, where doctors practice with half an eye to avoiding being sued. A similar process will have to take place in relation to litigation. However half an eye may not be enough.