“AN OBJECT LESSON IN HOW MODERN LITIGATION SHOULD NOT BE CONDUCTED.”
It may be thought that commentary on issues of procedural default is in abeyance until the Mitchell decision from the Court of Appeal. However, as recent posts have shown, cases are still coming through thick and fast. When a judge makes the observation cited above that case clearly requires close examination.
Here we look at the recent case of Webb Resolutions Limited –v- JV Limited T/A Shepherd Chartered Surveyors  EWHC 3526.
The parties were ordered to file expert evidence by the 7th June 2013. The Claimant filed a report the Defendant did not. Instead late on the last day before the report was due the Defendant demanded further documentation from the claimant. The Claimant sent a detailed response. However the Defendant never sought an extension of time for service of its expert’s report but, on the 21st October 2013 made an application for specific disclosure.
The Defendant’s application for further disclosure was refused. By this time the Defendant was five months late in serving its expert report.
THE DEFENDANT’S APPLICATION
The Defendant took no further steps until the 21st October 2013. They then made an application seeking disclosure of the documents originally requested, including documents which had already been provided by the Claimant.
In response the Claimant issued a cross-application to strike out paragraphs of the Defendant’s defence which would remove the Defendant’s basis for disclosure. They also applied for an unless order requiring service of the Defendant’s expert report.
The parties’ applications were heard on the 8th November 2013. The Defendant had still not issued any application seeking an extension of time for service of its expert report.
Mr Justice Stuart-Smith observed:-
“The Defendant is five months out of time for exchange of its expert evidence. Given the failure of its application for specific disclosure, there is no good reason for its non-compliance. By its skeleton argument, the Defendant asked for 14 days from the provision of any additional disclosure. Since no additional disclosure is being ordered, the Defendant will be ordered to file and exchange any expert evidence by 4pm 14 days after the date of handing down of this judgment. That will be a final order, in default of which the Defendant will not be permitted to rely upon expert evidence at the trial of the Lending and Assignment Issues”
THE TELLING OBSERVATIONS
The key part of the case is contained in the postscript where Mr Justice Stuart-Smith commented on the Defendant’s conduct leading up to the application
“The Defendant’s pursuit of additional disclosure as outlined in this judgment is an object lesson in how modern litigation should not be conducted. First, it is not acceptable that the Defendant waited until the day upon which expert reports were due to be served before raising the request for further disclosure. In submissions, it was said that the request for further disclosure had been provoked (at least in part) by reading the witness evidence that the Claimant had served. That may be so, but the evidence had been served on 30 April 2013 and there is no reason or explanation why nothing was said or done to raise the question of additional disclosure for over 5 weeks from that date. Second, the Defendant did not acknowledge at any stage that it was in default of the order for exchange of expert evidence. Even when issuing its application for specific disclosure, and despite repeated reminders from the Claimant, it did not apply for an extension of time or for relief from sanction as it should have done. No explanation has been advanced for this failure. Third, despite full and clear explanations from the Claimant’s solicitors, it pressed ahead with the application for all of its original categories of documents without apparent regard for what it had been told. Fourth, it displayed no sense of urgency at all either in correspondence or in taking the step of issuing the application. The Court was told that the delay in issuing was attributable to the need to obtain instructions from insurer and lay clients, though Mr Walker has made plain that this did not involve delay on the part of any client. That is not a satisfactory or sufficient explanation in the context of a sequence of events that started on 7 June 2013 and where the Defendant had taken weeks to reply to the Claimant’s letters of response and then took nearly two months to issue the application. As it happens, the fact that the First Trial is fixed for March 2013 means that these delays are not critical: but that does not make them acceptable. Fifth, an application for four residual categories of disclosure was eventually accompanied at the hearing by five files of documents with 1645 pages. The only underlying documents that were of real relevance and to which reference was made in the course of the application were the four letters leading up to the issuing of the application, the MSAs and the accounts upon which the Defendant relied to show the level of profit made by the Claimant on these transactions”
WHAT SHOULD HAVE BEEN DONE?
Putting aside the merits of the application for disclosure itself a prudent litigator, considering a similar position in the future will be best advised to:
- Make any application for additional disclosure well in advance of any date for the exchange of evidence. It is unwise to wait until the last day for compliance before seeking further disclosure.
- Make an application for an extension of time for disclosure of the expert report in advance of being in default.
- Apply for relief from sanctions promptly if the court order has been breached. If necessary including that application as part of another application (such as for specific disclosure).
- Issue applications for further directions/extensions of time timeously.
- Consider carefully the documents needed to accompany an application, paring them down to the essential items.
DID THE DEFENDANT GET OFF LIGHTLY?
There are some commentators who may think that the defendant escaped lightly. It was months late in filing expert evidence and yet got another 14 days (albeit subject to a peremptory order). The judge recorded that
“Although the Claimant correctly maintained its submission that the Defendant needs permission in order to be entitled to adduce expert evidence, it sensibly recognised that the Court was unlikely to debar the Defendant at this stage”.
There are cases when late service of experts report has led to the evidence being disallowed altogether. See Dass –v- Dass  EWHC 2520 QB discussed at http://civillitigationbrief.wordpress.com/2013/08/20/failure-to-comply-with-cpr-can-bite-defendants-too/
WHO GOT THE JOB OF DRAWING UP THE ORDER?
It is difficult to leave this case without looking at the earlier reported judgment of this matter reported at  EWHC 509 (TCC). This concerned directions made after a hearing in November 2012. After the judge made directions at that hearing t he parties were t asked to draft the order. This was then to be lodged with the court for approval by the judge.
Three days after the hearing the Claimant sent a draft order to the Defendant that “bore almost no relation to what [Mr Justice Edwards-Stuart] had directed”.
The Defendant responded on the 10th December 2012 highlighting that the Defendant did not agree that the Claimant’s order properly reflected what the judge had ordered.
Further discussions took place between the parties but they were unable to agree on the precise drafting of the order. The Claimant’s Solicitors then wrote to the court explaining that they were “experiencing great difficulty in drafting the order in a way which will give effect to the courts wishes but will avoid duplication of time and costs”
The Claimant’s Solicitors continued to refuse to agree the order for a further three months. They made no application to vary the order and did not seek permission to appeal the order which had been made by the judge. As a result the Defendant applied for and was award its costs which were incurred due to the Claimant’s Solicitor’s protracted attempts to get the Defendant to agree to a different order.
THE JUDGE’S COMMENTS ON THE CLAIMANT’S SOLICITORS CONDUCT
Edwards-Stuart J made a number of comments on the parties’ duties when drawing up court orders:
“If a party is charged with drawing up an order it is the duty of solicitors and counsel to produce a draft that fairly reflects what they think the judge decided or directed. Save for the most complicated directions, this seldom presents any difficulty. What Rosling King did in this case was to produce an order that reflected the directions that they or their clients would like to have, and not the directions that the court in fact ordered. That is wholly unacceptable: it is not just unreasonable, it is verging on the contumelious (to use an old fashioned, but completely apt, adjective) Rosling King’s professed difficulty in the drafting of the order was nothing of the sort: their difficulty was in persuading RPC to agree to an order in terms which had not been made. RPC were wholly justified in resisting this and, indeed, their version of the order reflected what I ordered as Rosling King by their final and unwilling consent to it, must be taken to have accepted.”
He went on to say:
“In my judgment, what occurred in this case must not happen again. Solicitors and counsel are to give effect to court orders; they are not to attempt to manipulate them to their own or their client’s perceived advantage. I see no reason at all why the Defendants should have to pay the costs that were quite unnecessarily incurred as a result of the Claimants’ manoeuvres.”
LESSONS TO LEARN
It hardly needs saying (indeed should not need saying at all) that parties drawing up a court order are drawing up the order made by the court and not the order they wanted to have.
WHERE TO FIND THE CASE
The latest judgment (in relation to disclosure) can be found at http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/TCC/2013/3526.html&query=webb+and+resolutions&method=boolean
The earlier judgment in relation to drawing up the order can be found at http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/TCC/2013/509.html&query=webb+and+resolutions&method=boolean
There are now numerous posts that deal with default and delay. For a discussion of a case where both parties were nearly barred from adducing witness evidence because of late service see http://civillitigationbrief.wordpress.com/2013/07/21/serving-witness-statements-late-an-extremely-dangerous-practice/