CIVIL LITIGATION REVIEW OF 2016: PROMISCUOUS BUNDLES & THAT CRAZY LITTLE THING CALLED PROPORTIONALITY
This is the third annual review of the year on this blog. 2016, as ever, has been an interesting year. As ever, a comprehensive review can be found in Herbert Smith Freehills A litigator’s yearbook: 2016 (England and Wales).
PREDICTIONS FROM LAST YEAR
- Proportionality will remain a big (and largely unresolved) issue.
- The meaning of “fundamental dishonesty” is going to be tested on numerous occasions.
- Someone, somewhere, is going to get into serious trouble for signing a statement of truth on behalf of a client.
There are always dangers in making predictions:-
- Questions of proportionality are due to be heard in the Court of Appeal later this year.
- I did a round up of fundamental dishonesty cases in Fundamental dishonesty cases: the past 12 months: a round up.
- A wasted costs order was made in Brown -v- Haven where the solicitor had signed a schedule of damages.
“16. It is crystal clear that certainly at the time this lady signed the updated schedule of damages and the statement of truth that she did not have specific instructions. It is clear on the balance of probabilities that the procedure in both Bollin and Amanda Cunliffe is to get a general form of authority from the client and then to sign any documents that they consider to be appropriate and tell the clients that they have done it thereafter. That was the clear evidence I had before me today.
17. The evidence was in relation to the updates schedule of damages that, and I quote, “I was unable to speak to the claimant at this stage and so was not prompted by any conversation with him. It was clearly an oversight on my part”
MOST READ POSTS OF THE YEAR
For two years running the post on preparing trial bundles had first place. This year it has been knocked into second place by a post that was written in January 2014. The top four are:
- Drafting witness statements that comply with the rules: a checklist too important to ignore.
- Trial bundles: timing, content and presentation: and do you know Sedley’s Laws?
- Pleading a defence properly: the difference between a “non-admission” and a “denial” explored.
- Pleading and proving allegations of fraud: useful links and guidance
BEST OPENING WORDS OF A JUDGMENT IN 2016
Mr Justice Gilbart in The Queen (on the application of David Dilner) -v- Sheffield City Council  EWHC 945 (Admin) encapsulates geography, history and economics in one paragraph.
Sheffield is one of the great cities of Northern England. Parts of it lie within the Peak District, which abuts its western aspect. It lies where several rivers and streams (the Rivers Don, Sheaf, Loxley, Rivelin, and Porter, Meers and Owler Brooks) flow eastwards off the Pennines. Many of its roads and streets (and especially in the suburbs running westwards and south-westwards from the City Centre) have trees planted along them, in the verges or other land within the highway. Like many of the great cities of the north of England, it suffered during the deindustrialisation of the late 20th Century and the financial stringency endured by local authorities over the last 30 years or more. The upkeep of its roads and streets were not immune to the testing climate that created for local authorities, and a backlog of maintenance developed.
BEST OPENING WORDS OF A JUDGMENT (OTHER JURISDICTIONS)
Mr Justice Max Barrett also encompasses history and economics in White -v- The Bar Council of Ireland  IEHC 283
” Was there ever, in our long national history, a financial mess to match the rise and demise of the so-called ‘Celtic Tiger’? These are yet another set of proceedings that appear, ostensibly at least, to spring ultimately from that financial fiasco and to show just how insidious our recent national bankruptcy has proven over time to be for so many people in so many walks of life. Mr White is a retired High Court judge. He claims that, thanks largely to cuts in salary and pension that he suffered following on the nation’s financial crisis of recent years, and faced with the cost of rearing a still-young family, he needs at this time to return to practice at the Bar as a member of the Law Library. He objects, however, to rule 5.2.1 of the Code of Conduct of the Bar Council of Ireland which prevents him, following retirement as a judge, from practising in a court of equal or lesser jurisdiction than the court in which he was a judge. His particular objection is that he was formerly a criminal defence barrister of no little eminence and he wishes now to return to this line of practice, which has its natural focus in the Circuit and High Courts – two courts in which he cannot practice by virtue of rule 5.2.1.”
CASE THAT LED TO THE WORST/BEST PUNS
There was an easy and clear winner The common theme every year so far is that the case involves a celebrity. This year it was Dr Brian May and his fretful meeting with the principles of proportionality.
Litigation Futures has, no doubt at all, first place with:
Easily beats my own
However honourable mentions have to go to
Boddle Hatfield and
MOST EXPENSIVE INJUNCTION OF THE YEAR
In common with last year this is a case where a defendant to an ex parte injunction had the injunction set aside due to the absence of full disclosure. Damages were obtained on the undertakings that the claimant had given.
In Fiona Trust & Holding Corporation -v- Privalov  EWHC 2163 (Comm) the claimant was ordered to pay tens of millions of dollars in damages following the obtaining of a freezing order.
As I began this judgment by observing, Mr Nikitin has been found to be dishonest in at least some of his business dealings and untruthful in his evidence in this court. It may therefore seem odd to be awarding damages for his benefit running into tens of millions of dollars. However, as Andrew Smith J pointed out at  of the enforcement judgment, even serious and well-founded criticisms of a defendant’s character do not mean that claimants can be less scrupulous in complying with their duties when applying for a freezing order. Nor do they provide a reason not to enforce an undertaking:
“It is an integral part of the court’s procedure to require undertakings when making such interim orders so that defendants can be compensated in appropriate cases, and it is no less important where the character of the defendant or the nature of the case apparently justifies a freezing order.”
The potentially devastating consequences of a freezing order have often been recognised. It is only just that those who obtain such orders to which they are not entitled, a fortiori when they are guilty of serious failures to disclose material facts and have pursued claims described by the trial judge as “obviously unsustainable”, should be ordered to provide appropriate compensation for losses suffered.
MOST PROBLEMATIC BUNDLES: CHAOTIC, PROMISCUOUS AND UNNECESSARY
As ever there is a lot of competition for this award. The winner is the bundle described by the Court of Appeal in Pawar -v- JSD Haulage Ltd  EWCA Civ 551
“… the appeal bundles prepared by the appellant’s solicitors were chaotic. Alternative bundles were prepared by the respondents for use by the parties and the court. Accordingly the costs of preparing the appeal bundles are to be the respondents’ in any event, to be assessed if not agreed.”
Second place (winner in the “bundles at first instance category” is the bundle described by Mr Justice Coulson in Deluxe Art & Theme Limited -v- Beck Interiors Ltd  EWHC 238 (TCC)
“I should say at the outset that I am extremely grateful to both counsel who dealt clearly and concisely with the issues. As practitioners experienced in this sort of work, I know they will have shared my consternation that a relatively simple enforcement dispute was the subject of no less than six full lever arch files. Four of these files were never referred to. It is exceedingly rare that any adjudication enforcement dispute requires more than one lever arch file of documents. The time is fast approaching when, unless the parties and their solicitors cooperate properly and comply with the TCC Guide, the court will simply refuse to hear cases with such promiscuous and unnecessary bundling.”
MOST PROBLEMATIC EXPERT WITNESS
Again there were numerous candidates for this award. However the judgment of His Honour Peter Hughes (sitting as a Judge of the High Court) in Watts -v- The Secretary of State for Health  EWHC 2835 (QB) contained a systematic criticism of an expert witness:-
In his closing submissions, Mr Barnes made a number of serious criticisms of Ms Chaliha. I quote below from his written submissions (the references are to the relevant pages of the transcript of Ms Chaliha’s evidence):
i) She undertook to provide expert evidence in respect of a shoulder dystocia in 1993 in circumstances where she had no experience of managing a shoulder dystocia until 1998 .
ii) She failed to supplement that knowledge by reference to any textbook other than a single textbook published in the UK, and accepted “on reflection” that she should have done more .
iii) She failed to give a balanced opinion in her report. For example, she felt that it was necessary to apologise for failing to recognise in her report that the policy [protocol] was reasonable .
iv) She was evasive and prolix in the face of difficult questions, for example her response to the issue of whether the fact that clinicians were pulling harder during difficult deliveries in 1993 was consistent with the guidance available at the time [198 – 204].
v) She made unjustified criticisms in her report, for example, in her report, at paragraph 140, she asserted that the note in the summary of labour as to the position of the foetus at delivery was unclear, but accepted in cross examination that it was clear and she should have recognised that in report, even if she doubted the accuracy [258 – 259].
vi) She made several unjustified and unexplained attempts to change her opinion in favour of the Claimant at trial:…
vii) She appeared not to understand the relevant anatomy. Despite accepting that where a posterior shoulder injury occurs, it occurs without the knowledge of the team managing the delivery , she criticised the team for not identifying it at paragraph 132 of her report and question 23 of the joint report. When this was put to her, she was not able to provide a consistent and coherent answer [238 – 244].
viii) She appeared not to understand the basics of managing shoulder dystocia. For example, she was very clear that suprapubic pressure should be applied to the pubic symphysis [246 – 247]. As explained by Mr Tufnell [287 -289], this would not be in accordance with the RCOG 2012 guidelines, which require pressure to be applied above the pubic symphysis on the anterior shoulder, and would not meet the standard necessary to pass the RCOG examinations.
MOST PROBLEMATIC WITNESS STATEMENTS OF THE YEAR
Again this was a category with huge competition. The common theme of most of the cases is the tendency for statements to argue the case, attempts to give expert evidence, and comment on the opponent’s case. In Moore -v- Moore  EWHC 2202 (Ch) Mr S Monty QC (sitting as a Deputy Judge of the Chancery Division)
That task is made more challenging in the present case because of the nature and length of the written witness evidence. Stephen’s witness statements run to in excess of 100 pages. Pamela’s statement is almost 70 pages, some of which appears to be an attempt to introduce expert evidence. The statement of Mr Mike Butler, the accountant, is 136 pages, much of which is repetitive. For reasons I need not go into, Mr Butler’s witness statement was something of a joint collaboration between the parties. That being so, it is incomprehensible to me that no-one, on either side, thought more carefully about how to excise the repetitions from his statement and how to limit its length, as well as how to avoid the 4 lever arch files of annexed documents being before the court, all of which save for one or two minor exceptions, were copied elsewhere in the trial bundles.
In addition, there are lengthy statements from Julie and Andrew. I heard oral evidence from all of these witnesses, as well as from a number of others. There were 13 lever arch files of documents and copy diary entries, and further documents (including all of Pamela’s diaries for the relevant years) were introduced as the hearing progressed.
A principal theme in the statements of Pamela, Julie and Andrew relates to the alleged bad behaviour of Stephen. Their statements in this action, as well as statements made in related non-molestation proceedings which Roger brought against Stephen, which statements were also in the trial bundles, detail a number of alleged incidents which are said to show Stephen’s unreasonable conduct in relation to the running of the farm, his attitude towards expenditure, and his behaviour towards Roger and others. Very few of these were explored with Stephen in cross-examination. Mr Thomas made his position clear on Day 2 of the trial. He stated that he did not rely on any matters which he had not put to Stephen in cross-examination. It follows that save for those matters of conduct or behaviour which were the subject of Stephen’s cross-examination I will disregard them all. That is not to say that they did or did not happen; they are simply not relied on by Roger and I need say no more about them at this point.
I have also disregarded those parts of the evidence (principally in Pamela, Andrew and Julie’s statements) which are either comment or opinion evidence in relation to whether Stephen has suffered a detriment. These were highlighted as objectionable by Miss Shea by placing a red line next to the relevant passages, and whilst I have read them, I agree that they have no place in statements of witnesses of fact.
One witness was not even certain who prepared her witness statement.
Julie came across as confused, particularly about the way in which her witness statement was prepared (at first she said that “we wrote it”, then she said she had written it, she then said that she agreed it although no-one else helped her to write it, but then said she wrote a lot of it although no-one else helped her write the rest of it), and her oral evidence was so uncertain and evasive that as a whole I have concluded her evidence was not reliable.
BEST PIECE OF REAL EVIDENCE
In Bramwell -v- Robinson  EWHC B26 (Ch) one of the disputes related to the size and safety of speed bumps constructed along a shared road. HH Judge Behrens observed:-
(I’ll leave you to guess how that particular issue was resolved).
BEST ADVICE FROM ELSEWHERE
I was grateful to Darlingtons solicitors for their permission to reproduce their post on Are you legally streetwise. Their guidance includes:-
“Disputes and litigation often bring out the worst in people”
You will almost certainly come across clients who are very streetwise and know their way around litigation situations and life better than you
A litigation client may, as part of his or her strategy, have the intention, from the outset, to possibly blame you for not getting the result they want
BEST COMMENT IN COURT
I have already included a quote from the (now retired) Judge Behrens. My favourite comment of the year came from his speech at his valedictory held in court in Leeds. After reviewing his career at the bench and bar he looked forward to retirement, and said:
“I do know that no one is ever going to laugh at any of my jokes ever again”.
Civil Litigation review of 2015: poetry, carpet bombing and disappearing experts.