SORRY SILKS: IMPORTANT AS YOU ARE THE CASE IS NOT BEING HELD UP FOR YOU: THE TAIL IS NOT GOING TO WAG THE DOG

The judgment of Mr Justice Fraser in Bates & Ors v Post Office Ltd [2017] EWHC 2844 (QB) contains some telling observations about case management, listing and the need to comply with the overriding objective.

“Fitting hearings around [counsel’s] availability has all the disadvantages of doing an intricate jigsaw puzzle, with none of the fun associated with that activity.”

litigation of any type, but particularly of this type, can only be conducted in a cost-effective and efficient way if the parties co-operate between themselves, are constructive, and conduct the case efficiently. The parties have a duty to help the court to further the overriding objective in CPR Part 1.3. The following have all occurred so far in this group litigation: failing to respond to proposed directions for two months; failing even to consider e-disclosure questionnaires; failing to lodge required documents with the court; failing to lodge documents in good time; refusing to disclose obviously relevant documents; resisting any extension to the “cut-off” date for entries of new claimants on the Group Register; and threatening pointless interlocutory skirmishes. On the material before me, this has been more or less equally on both sides. Such behaviour simply does not begin to qualify as either cost-effective, efficient, or being in accordance with the over-riding objective. A fundamental change of attitude by the legal advisers involved in this group litigation is required. A failure to heed this warning will result in draconian costs orders.

THE CASE

The claimants are bringing a class action alleging faults in the Post Office “Horizon” system which led to errors in accounts.  The judge was making directions under a Group Litigation Order.

THE JUDGMENT: CASE MANAGEMENT

    1. Accordingly, shortly after being appointed the Managing Judge, I issued Directions Order No.1 on 25 April 2017 ordering the 1st CMC to take place before me on 19 October 2017. That was a date almost six months ahead.

    2. The order was met with a wholly unsatisfactory response from the clerks to leading counsel for the claimants, who notified the court that the hearing that had been ordered could not be accommodated on that date, but the court would be notified of a date that could be accommodated by all counsel jointly, once their clerks had agreed this between themselves. This response was referred immediately to me, and appeared to be a clear case of the tail wagging the dog. It is notable that judicial availability, and the dates ordered both in the GLO and in Directions Order No.1, were considered such a secondary consideration to counsels’ diaries.

    3. This is a large and complicated case. Quite apart from the fact that there are, as at the date of this ruling, over 500 claimants, the technical subject matter of the Horizon system is likely to be complex, and permission has already been granted for expert evidence in this field. The litigation must be conducted in accordance with the overriding objective. CPR Part 1.1(2)(d) expressly requires the case to be dealt with expeditiously and fairly. CPR Part 1.4(1) requires that it be actively case managed; CPR Part 1.4(2)(g) makes it clear that fixing timetables is part of this; CPR Part 1.4(2)(l) requires directions to ensure that the trial of a case proceeds expeditiously and fairly. Group litigation has its own Practice Direction 19B, but it is re-inventing the wheel to state that this must be considered within the context of CPR Part 1. Not only that, but the subject matter of the litigation is a matter of obvious public interest. The defendant is an important public institution on the one hand; on the other, many individuals have had their lives affected to a very considerable degree, including in some cases bankruptcy and criminal convictions. There is a yawning gulf between the parties as to liability. Resolving the many issues in the group litigation is likely to take some time.

    4. In April 2017 I therefore made it clear to the parties that the date for the 1st CMC had been ordered by the managing court; that a formal application to move the date of the 1st CMC would be required; and that this had to be supported by a witness statement in the usual way. This particular direction was then wholly ignored. The letter from leading counsel that did come to the court seeking to justify changing the date (without any application) was based, purely and simply, upon counsel’s availability. I then directed that hearings in this group litigation, particularly one directed so far in advance, would not be fixed around the diaries of the many barristers in the case. To do otherwise would, undoubtedly in my judgment, simply lead to considerable delay at every step of the litigation. There the matter rested until the 1st CMC took place on 19 October 2017.

    5. At that CMC, and indicated in advance beforehand in correspondence to the defendant in early July 2017, the claimants sought identification of a large number of common issues – essentially legal and contractual in nature — and sought a substantive hearing of those issues in October 2018. The stated position of the defendant until just a few days before the CMC was that no substantive hearing should be ordered at this stage of the litigation at all, and that the case should be case managed for another entire year without any substantive hearing being fixed by the managing court. The defendant’s proposal was that the matter should be revisited in the autumn of 2018 with a view to fixing a trial later than that, which would inevitably be well into late 2019 at the earliest. To describe this approach as leisurely, dilatory and unacceptable in the modern judicial system would be a considerable understatement. In the event, at the CMC itself the defendant adopted a more constructive approach to the litigation, and a substantive hearing was ordered for 5 November 2018 for 20 days to deal with 23 different common issues.

    6. The day after that trial was ordered (as one of a large number of case-management directions issued at the conclusion of the lengthy CMC) a letter was received from leading counsel, this time for the defendant. This explained that he already had a commitment in his professional diary in the Companies Court in the Chancery Division for three weeks, due to commence in late October 2018, and this meant that he would be unavailable for any trial in November 2018. He therefore sought the trial date being moved into 2019, a possible date that had been discussed in outline at the CMC the day before. This was not opposed by the other party.

    7. I therefore restored the CMC and heard oral submissions. I declined the application and explained I would give written reasons for doing so.

    8. There is no doubt that the other matter upon which leading counsel for the defendant is engaged is also very complicated and of extremely high value, namely an unfair prejudice petition under section 994 of the Companies Act in relation to a company valued at approximately £1 billion. It is also the second tranche of the trial, the first tranche being one of liability which is to be held in January 2018 with a trial estimate of seven weeks. There are however two points that arise in this group litigation which are, in my judgment, of considerable importance and outweigh any other considerations in favour of delaying the hearing. The first is the nature of this litigation generally, and the interests of the administration of justice in resolving the issues. The second is the likely consequence of granting the request, and its possible effect on the litigation generally.

    9. Fixing hearings in this group litigation around the diaries of busy counsel, rather than their fixing their diaries around this case, is in my judgment fundamentally the wrong approach. If the court embarks upon a course of organising hearings around counsel, more and more time will creep into the timetable of the litigation as a direct result. This applies to all hearings, but particularly to trials of substantive issues. All the parties are to be treated fairly. If a request by the defendant for delay of two to three months into 2019 is agreed by the court at this stage, there will be the risk of at least the appearance of unfairness if similar requests by the claimants’ counsel are not acceded to in the future.

    10. Counsel for the defendant pointed out that by declining the application, there was a risk that the defendant would be deprived of the counsel of their choice. That is a risk, although it is difficult so far in advance of the autumn of 2018 to quantify it. Given the nature of the other commitment, on one potential outcome of the liability hearing in that other case, the risk will be zero. This is because with liability findings in their favour, the party in the other matter represented by leading counsel will not be participants in the quantum trial at all. Even if the risk is appreciable, given this is group litigation, not all of the claimants have counsel of their choice either (or solicitors, for that matter). The nature of a GLO is that claimants are included on the Group Register and have to progress their cases with single representation ordered by the GLO. They are not entitled to choose their own legal representatives.

    11. On the face of it, a delay in the first round of substantive hearings from November 2018 into early 2019 could be viewed as modest. However, in this case it would mean that the first substantive hearing would commence almost two years after the making of the GLO. That is simply far too long in my judgment. The delay until November 2018 is more than enough as it is. I was persuaded at the CMC, given the large amount of work to be done before the first common issues are tried, that this timescale was necessary. However, further delay must be avoided. My approach in this group litigation will be to fix reasonable durations for certain steps to be taken, and consider requests for modest extensions on their individual merits. The parties may however find that extensions are only granted grudgingly, given the matters identified in paragraph 10 above. All of the many claimants, and the defendant, need resolution of the matters in issue.

    12. Counsel of high repute – which in this case they are – are extremely valuable in the marketplace and have many potential clients. They all work extremely hard and it is a function of the independent Bar that they will usually have multiple cases underway simultaneously. However, such counsel will, by definition, usually have a large number of hearings in their diaries. Fitting hearings around their availability has all the disadvantages of doing an intricate jigsaw puzzle, with none of the fun associated with that activity. This difficulty becomes even more acute if hearings of four weeks and longer are required, which in this group litigation they will be. Whilst it may be regrettable that one party might be deprived of their counsel of choice because of listing, that is a not unusual situation. Where there is reasonable notice of a diary conflict, which there undoubtedly is in this instance, arrangements for a suitable replacement can invariably be made by the disappointed party, if a replacement is necessary.

    13. The other consideration in terms of incremental delay to hearings is that this will lead to the litigation overall taking longer than it otherwise would. This will undoubtedly add to the costs. One of the favourable points from the earlier so-called Woolf Reforms identified by Jackson LJ in paragraph 1.1 of his Review of Civil Litigation Costs: Preliminary Report (May 2009) was “the case management function, which the court has assumed following the Woolf reforms, prevents cases from being parked indefinitely, whilst the parties or their lawyers attend to other matters” (emphasis added). His report was initiated due to the mounting concerns about the cost of civil justice. If delaying hearings will lead to higher costs – and it undoubtedly will – then delaying hearings must be avoided if at all possible.

    14. Taking all these circumstances into account therefore, hearings in this group litigation will not be fixed to take account of the availability of counsel. They will however be fixed well in advance, where possible, so that counsel will know when they will be taking place and plan accordingly. To that end, at the restored CMC I ordered that there would be a further trial of substantive issues set down for 20 days, commencing Monday 11 March 2019. The issues to be resolved in that tranche of the litigation have not yet been identified but will be in September 2018.

Finally, litigation of any type, but particularly of this type, can only be conducted in a cost-effective and efficient way if the parties co-operate between themselves, are constructive, and conduct the case efficiently. The parties have a duty to help the court to further the overriding objective in CPR Part 1.3. The following have all occurred so far in this group litigation: failing to respond to proposed directions for two months; failing even to consider e-disclosure questionnaires; failing to lodge required documents with the court; failing to lodge documents in good time; refusing to disclose obviously relevant documents; resisting any extension to the “cut-off” date for entries of new claimants on the Group Register; and threatening pointless interlocutory skirmishes. On the material before me, this has been more or less equally on both sides. Such behaviour simply does not begin to qualify as either cost-effective, efficient, or being in accordance with the over-riding objective. A fundamental change of attitude by the legal advisers involved in this group litigation is required. A failure to heed this warning will result in draconian costs orders.