JUDGES CANNOT MAGICALLY ACQUIRE INFORMATION BY OSMOSIS: THE DUTY ON PARTIES TO ENCAPSULATE LONG-RUNNING LITIGATION

June 9, 2018 · by · in Advocacy, Applications, Case Management, Civil evidence, Costs

In SC BTA Bank v Ablyazov & Anor [2018] EWHC 1368 (Comm) Patrica Robertson QC (sitting as a High Court Judge) reminded practitioners that judges have no magical powers. When a long-running case on a “grand scale” comes before the court on an application the parties have to encapsulate the case in a manageable form.

THE CASE

The claimant bank made an application that the second defendant provide full and proper disclosure relating to the way in which his legal expenses in the action was being funded. The case had been before the courts on numerous occasions, it was described as “litigation on a grand scale”.

THE JUDGE’S OBSERVATIONS

  1. I should note that the time estimate for the two applications was clearly inadequate – dealing with just the remaining live application took a longer than normal Court day and, even then, what emerged was that it was necessary for me to read and consider material to which I had not been directed in pre-reading and which there was not sufficient time to absorb during the course of the hearing itself.
  2. There is perhaps a tendency, when a matter is so frequently before the Courts, to assume that successive judges can somehow magically acquire, as if by osmosis, the knowledge of the case which those judges who have dealt with it on previous occasions have acquired. Both sides need to remind themselves of the importance of encapsulating, in a manageable form, everything that is necessary to a given decision, by a given judge, on a given occasion. There is otherwise a risk of relevant material being overlooked or misunderstood by the judge, or of one side or another being taken by surprise in respect of what material is relied upon for the purposes of the application that is in hand.
  3. In the end, for reasons further explained below, I do not think Mr Khrapunov can realistically complain that he has been taken by surprise or prejudiced in his ability to meet this application. However, the way in which the matter developed was not, if I may say so, best designed to assist the Court in its task of fitting this one piece into a rather large, complex and developing jigsaw.

THE SUBSTANTIVE DECISION

The judge found that the court had a discretion to make an order that the second defendant disclose his source of funding and made the order requested by the claimant.

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