Claimants in the ongoing legal action over brain injuries in rugby have been left on the hook for £2.8m in legal fees owed to the defendants, the majority of which will have to be settled by the end of October if the case is going to continue in anything like its current form.

The costs are a direct consequence of the delays that the court decided were caused by what the judge, Senior Master Cook, described in court on Friday as the “contradictory and misguided approach” of Rylands Garth, the solicitors firm who had been representing the players until earlier this year.

Hundreds of claimants currently stand as struck off from the action because they were found to be in breach of a court order requiring them to disclose to the defendants – World Rugby, the Rugby Football Union, the Welsh Rugby Union and the Rugby Football League – all the available documents relating to their neurological testing. Cook ruled that those cases will be allowed to continue only on the conditions that the defendants’ legal fees are settled, and that KP Law, the firm that replaced Rylands Garth in July, is able to comply with the unfulfilled disclosure obligations by the end of October.

Paul Downes KC, representing the claimants, acknowledged that the case was still “in crisis” and that the players were now in “whatever watering hole lies beyond the last chance saloon”. Downes acknowledged that someone “was going to have put their hand in their pocket” to settle the £2.8m in costs. It is unclear who it will be. The claimants’ action is being funded by the legal finance firm Asertis, which has already met the multimillion pound costs of the claimants’ legal work and all the neurological testing that has been done so far in the six years the case has been running.

Downes also warned that if the cases were struck off, the delays caused would mean that many of the claimants would never get the opportunity for justice. “I understand seven of the rugby union claimants are deceased,” Downes said. “The sort of delays we are talking about almost certainly mean there would be many more.”

Cook also raised concerns about the fact that the same legal team was working on a second large-scale litigation about brain injuries in football, and the effect this might have on the progress of the rugby cases. He was reassured that despite Rylands Garth having recently insisted that it intended to continue with the legal action in football, it has also applied to come off the record in that litigation and will no longer be actingact on behalf of the claimants. It is unclear as yet who, if anyone, will take it over.