Gyles J opens up a can of judicial whoop-arse

1. The chronology of this matter to date makes very sad reading. It demonstrates a continuing failure to understand the obligations of a solicitor in matters of this kind on several levels. The first and most fundamental is not appearing on the date and time required in Court on two occasions. Secondly, absolutely incompetent attention to the settling of an index which, itself, involved time defaults. Thirdly, not ensuring, by the time this application was made, that the index was settled. Fourthly, having the temerity to suggest that the costs, if the application were allowed, should be costs in the cause. Fifthly, having failed to appear initially, on the next occasion being represented by an agent who had no idea about the case at all and was unable to advance any substantive assistance having told me he had been called at the last moment, then persisting, on the following occasion, in having that agent appear again, still with no idea about the case. Finally, in providing an absurd explanation about 10.00 am rather than 9.30 am being the time when, first of all, 9.30 am is the general time for directions in this Court, secondly, where there is a list published every day, and thirdly, a list is available on the internet the night before and on the morning of the directions hearing. I say "absurd" because it shows a total incompetence by the practitioners concerned, both the principal and the agent.

2. The difficulty I have, of course, is that I am not here to discipline solicitors. I am here to hear cases by litigants. There is no time limit involved. The applicant, I am told by counsel, has a case worth pursuing and it would be unjust if that were not permitted to be pursued because of the defaults of the solicitors concerned who, frankly, it seems to me, still have absolutely no idea of the obligations involved to their client and to the Court. But that can be cured, so far as I am concerned, by costs. Professional discipline is not within my jurisdiction. However, the judgment will not be set aside unless and until an index is settled.

3. The order dismissing this proceeding is set aside conditionally upon a settled index being filed on or before 23 August 2007. I order that the costs of and incidental to this motion be paid by the solicitor for the applicant upon an indemnity basis.