CIVIL LITIGATION: REVIEW OF 2014: PROLIXITY, SANCTIONS, CREATIVE WRITING AND MUCH MORE

December 22, 2014 · by · in Appeals, Applications, Civil evidence, Civil Procedure, Disclosure, Expert evidence, Part 36, Serving documents, Statements of Case, Witness statements, Written advocacy

It is coming to that time of the year where everyone does an annual review.  We civil litigators cannot be left out. Here is an annual review for the past 12 months. If people want to make additional suggestions in the comments section on the blog feel free to do so.  (Herbert Smith Freehills have a useful litigator’s yearbook for 2014 which covers every major area)

220 DAYS OF MISERY, MADNESS AND “RIDICULOUS” DECISIONS

The early part of the year was, of course, dominated by the consequences of the Mitchell decision. A decision on the 27th November 2013 was, how shall we put it, “clarified” by the judgment in Denton on the 4th July 2014. In between that time, according to the Master of the Rolls, some “ridiculous” decisions were made. Civil litigation became a procedural minefield and the courts became courts of injustice rather than justice.

Denton made things much more balanced and sensible.  Taking highly technical points now puts the applicant as much at risk as the respondent.

LEGAL WORD OF THE YEAR

Apparently this is “prolixity”.

Mentioned expressly by Jackson L.J. in Inplayer Ltd -v- Thorogood [2014] EWCA Civ 1511. The third occasion, at least, this year when the costs of preparing skeleton arguments were refused because of their excessive length.

JUDGMENT THAT MOST ADVOCATED A “BACK TO THE GOOD OLD DAYS” APPROACH

Another clear winner is Aikens L.J.  who  appeared to regret that the sanctions  in Mylward -v- Weldon (1696) Tothill 102 were not available today

FORASMUCH as it now appeared to this Court, by a report made by the now Lord Keeper, (being then Master of the Rolls,) upon consideration had of the plaintiff’s replication, according to an order of the 7th of May anno 37th Reginæ, that the said replication doth amount to six score sheets of paper, and yet all the matter thereof which is pertinent might have been well contrived in sixteen sheets of paper, wherefore the plaintiff was appointed to be examined to find out who drew the same replication, and by whose advice it was done, to the end that the offender might, for example sake, not only be punished, but also be fined to Her Majesty for that offence; and that the defendant might have his charges sustained thereby; the execution of which order was, by a later order made by the late Lord Keeper the 26th of June, Anno 37th Reginæ, suspended, without any express cause shewed thereof in that order, and was never since called upou until the matter came to be heard, on Tuesday lost, before the now Lord Keeper; at which time some mention was again made of the same replication; and for that it now appeared to his Lordship, by the confession of Richard Mylward, alias Alexander, the plaintiff’s son, that he the said Richard himself, did both draw, devise, and engross the same replication; and because his Lordship is of opinion that such an abuse is not in any sort to be tolerated, proceeding of a malicious purpose to increase the defendant’s charge, and being fraught with much impertinent matter not fit for this Court; it is therefore ordered, that the Warden of the Fleet shall take the said Richard Mylward, alias Alexander, into his custody, and shall bring him into Westminster Hall, on Saturday next, about ten of the clock in the forenoon, and then and there shall cut a hole in the myddest of the same engrossed replication (which is delivered unto him for that purpose), and put the said Richard’s head through the same hole, and so let the same replication hang about his shoulders, with the written side outward; and then, the same so hanging, shall lead the same Richard, bare headed and bare faced, round about Westminster Hall, whilst the Courts are sitting, and shall shew him at the bar of every of the three Courts within the Hall, and shall then take him back again to the Fleet, and keep him prisoner, until he shall have paid 10l. to Her Majesty for a fine, and 20 nobles to the defendant, for his costs in respect of the aforesaid abuse, which fine and costs are now adjudged and imposed upon him by this Court, for the abuse aforesaid

BEST OPENING WORDS OF A JUDGMENT IN 2014

This goes to H.H. Judge Gosnell in Kucykkoylu -v- Ozcan [2014] EWHC 1972 (QB)

“His Honour Judge Gosnell:

  1. Overnight on 29th January 2012 the Defendant, Fatih Ozcan had a dream. In his dream he dreamt that he was holding a large bundle of cash and standing in front of him was the Claimant, Hayati Kucukkoylu, his employer. The Defendant is a strong believer in the power of dreams and interpreted this to mean that he and the Claimant would win the lottery. On 30th January 2012 a ticket was bought for the Euromillions Lottery which won the raffle prize of £1 million. Surprising though this history may be, it is not substantially disputed. What is disputed is who bought the ticket and who is entitled to the winnings.”

(BEST OPENING WORDS IF THERE HAD BEEN A CONTEST IN 2013)

The winner would be undisputed.  Mr Justice Males in Sargespace Ltd -v- Eustace [2013] EWHC 2944 (QB)

“Mr Justice Males :

Introduction – the hunny bunnies club

  1. Paul Baxendale-Walker (who also goes by the name Paul Chaplin) was formerly a barrister and then a solicitor specialising in tax law. Some people might have found that exciting enough, but since 2005, when he acquired and ran a company making pornographic films in which he also starred, he has been active in the sex industry. He describes himself now as a wealthy man living a playboy lifestyle. Those who are interested can apparently find details in the pages of Loaded magazine, which he purchased in May 2012. His lifestyle involves essentially casual relationships with multiple sexual partners, a group or club of women known as his “hunny bunnies” to whom, in return for their sexual favours, he makes lavish gifts, including money, clothes and holidays, as well as providing flats and cars for their use.”

MOST TELLING CLOSING WORDS OF A JUDGMENT IN 2014

That prize goes to H.H. Judge Behrens in Burnard -v- Burnard [2104] EWHC 340 (Ch)

Judgment was given in a complex and long running inheritance dispute. At the end of the trial the judge observed:-

“Finally I would like to express my gratitude to Counsel for their clear and helpful submissions in a by no means straightforward case and for guiding me through a mass of documents which had been collated in such a way that any compliance with the Chancery Guide was coincidental.”

MOST READ BLOG POST ON THIS BLOG IN 2014

That leads us on to the most read post of the year. Which is “Trial Bundles: Timing, contents and presentation: and do you know Sedley’s Law?”

People really want to know about trial bundles it seems.

(If trial bundles have got better over the past year and there has been a major saving in court and judicial time as a result I may qualify for a tax rebate of some kind. If everyone is actually following Sedley’s laws we’ll all be paying higher taxes).

MOST HITS IN ONE DAY ON THIS BLOG

No surprises it was the day of the Denton judgment.

MOST POPULAR SEARCH TERM

Apart from “Gordon Exall blog” (and lots of interesting variations of that) the most common search terms have been: “Mitchell case”; “Precedent H” and “Drafting a witness statement”.

MOST READ POST IN ONE DAY

A slightly different stat. However more people tuned in to read about a piece of litigation that was carefully and painstaking constructed but was not real. The solicitor had made up the applications; the appeals; provided false transcripts; false conferences (by phone) with leading counsel, the senior partner and false Bailli references.

CIVIL JUDGMENT THAT LED TO THE MOST (AND WORST) PUNS

Another easy winner. District Judge Lumb in Burt -v- Linford Christie . The judgment itself was admirably restrained in this regard. However legal commentators could not resist the temptation to compete with the tabloids and positively sprinted towards the puns.

LONGEST SKELETON ARGUMENT OF THE YEAR –  BACK TO PROLIXITY (SORRY TO GO ON ABOUT THIS BUT IT IS IMPORTANT…)

We don’t know the answer to that of course, but the cases keep coming in. In  Tchenguiz -v- Director of the Serious Fraud Office [2014] EWCA Civ 1333 the appellant’s skeleton argument ran for 47 pages and a proposed supplementary skeleton (served a week before the appeal) was an addition 34 pages with an appendix of an additional 15 pages.

This pales into insignificance, however, next to the 110 pages + 64 in Raja -v- Van Hoogstraten (No 9) [2008] EWCA Civ 1444.

“F. SKELETON ARGUMENTS

  1. We end this judgment with a criticism of the excessive length and complexity of Tombstone’s skeleton argument. It has 110 pages of text plus 64 pages of Appendices. Although its authors set out to assist the court, as well as the client, by a very thorough presentation of Tombstone’s case, it is sensible to set reasonable limits to its length. 

Look also at Midgulf International Ltd

Documents for the appeal

  1. It would not be right to end this judgment without expressing strong disapproval of the volume of papers with which the court was presented by Midgulf. There were 15 lever arch files. These included 5 volumes of authorities (totalling well over 100 authorities) and 3 files of documents (to which almost no reference was made) in addition to the core bundle. Midgulf’s first “skeleton argument” ran to 132 pages. Longmore LJ, as the supervising Lord Justice, ordered Midgulf to produce a proper summary of its argument. It produced a 15 page summary in which it complained that it was unable to develop its argument in proper detail and referred the court instead to the detailed argument contained in its previous document. The respondent’s skeleton ran to 23 pages, about which I make no complaint in the circumstances. Midgulf served a supplementary skeleton argument running to 30 pages, in which it repeated many of its previous arguments and complained that GCT had failed to address in its skeleton argument a number of the arguments advanced by Midgulf in its original skeleton argument. In that respect Mr Nolan had shown good judgment because the matters either did not arise on the appeal or were of peripheral relevance.
  2. I am afraid that the case is a grotesque example of a tendency to burden the court with documents of grossly disproportionate quantity and length. It is a practice which must stop. Far from assisting the court, it makes the work of the court infinitely harder. Hours had to be spent reading through Midgulf’s voluminous skeleton arguments, and they were largely wasted hours. It will no doubt also have added greatly and unnecessarily to the costs of the appeal.
  3. The central issue in this case was a very short one. As I said at the outset of the judgment, it turned on the effect of a small number of communications between the parties. All that the court needed in relation to that issue was to have the documents and a summary of each party’s argument, which could have been provided in far less than 10 pages. The ordinary principles of contract law in this area are so well known there was no need for reference to authorities, let alone well over 100 authorities.”

MOST EXPENSIVE ONE DAY HEARING OF THE YEAR

Again we can’t be certain. However the appellant’s costs schedule for the one day hearing in Eurasian Natural Resources Ltd -v- Dechert LLP [2014] EWHC 3389 came to £435,350.00).

BIGGEST CASE STRUCK OUT FOR NON-COMPLIANCE

Most probably the £50 million claim struck out following appeal in Smailes -v- McNally [2014] EWCA Civ 1296.

MOST PROBLEMATIC EXPERT WITNESS OF THE YEAR

There was lots of competition here. It appears unfair to pick a winner.  The expert in the case of Hirtenstein -v- Hill Dickinson LLP [2014] EWHC 2711 (Comm) appears to have had a particularly hard time. The tail end of the judgment on this point

  1. At the end of Mr Smith’s evidence, I offered him the opportunity to provide an explanation to the court before the end of the trial of how an appendix had come to be included as part of his report of which he claimed to have no knowledge. Mr Smith did not take up that opportunity, and I can therefore only infer that there is no explanation which exonerates Mr Smith of incompetence. On his showing in this case I do not consider that he is a fit person to act as an expert witness.
  2. In conclusion, I can attach no credence at all to the figures put forward by the claimants and rubber-stamped by Mr Smith for the alleged cost of repairs.

MOST PROBLEMATIC WITNESS STATEMENT OF THE YEAR

Again this was a category that had a lot of competition. The winner came from Kaupthing Singer & Friedlander Ltd (in administration) v. UBS AG [2014] EWHC 2450 (Comm) where Mr Justice Andrew Smith was not backward in giving his views.

” Mr Brazzill’s statement was not satisfactory, not least because it contained a great deal of argument and contentious comment on documents (a common problem with statements, despite the important guidance in 32.4.5 of the White Book). It was not only unnecessarily long, but it presented UBS with an unfair dilemma about what should be challenged in cross-examination. I was not willing for him to give evidence in chief by way of confirming the original statement. Accordingly, those acting for KSF prepared an amended version of the statement, which removed a good part of the more offensive contents, and I allowed it to stand as Mr Brazzill’s evidence in chief so as not to disrupt the trial further.

I did not consider Mr Brazzill a satisfactory witness: it became clear that he really knew nothing about some matters still described in his statement after it was supposedly revised to omit what was simply his comment.”

MOST OBSCURE JUDICIAL REFERENCE OF THE YEAR

A competition was held on twitter to see if anyone could identify precisely what Peter Smith J meant when he told to parties to avoid “reverse macrocosms” in Tindall Cobham -v- Adda Hotel [2014] EWHC 2637 (Ch). No-one was certain – not even those in the court.  (It was felt it could be the opposite of forward microcosms, but this was only a tentative guess.)

 BLOG POST THAT SHOWS THAT POLITICIANS KNOW NOT OF WHAT THEY SPEAK

My favourite blog post of the year is not about civil litigation, but is about costs.  Bob Stewart MP complained that people found innocent after a criminal trial, such as his colleague Nigel Evans MP, had to pay their own legal costs.  Barrister and blogger  Jon Mack wrote to Mr Stewart to point out that he had voted in favour of the change in the law.  Perhaps Samuel Evans, put it better.

MOST UNFAIR CRITICISM OF THE  CIVIL JUDICIARY IN 2014

  1. It seems that some judges are approaching applications for relief on the basis that, unless a default can be characterised as trivial or there is a good reason for it, they are bound to refuse relief. This is leading to decisions which are manifestly unjust and disproportionate. It is not the correct approach and is not mandated by what the court said in Mitchell: see in particular para 37″

Master of the Rolls in Denton -v- White [2014]  EWCA Civ 906.

“41. If the non-compliance cannot be characterised as trivial, then the burden is on the defaulting party to persuade the court to grant relief. The court will want to consider why the default occurred. If there is a good reason for it, the court will be likely to decide that relief should be granted. For example, if the reason why a document was not filed with the court was that the party or his solicitor suffered from a debilitating illness or was involved in an accident, then, depending on the circumstances, that may constitute a good reason. Later developments in the course of the litigation process are likely to be a good reason if they show that the period for compliance originally imposed was unreasonable, although the period seemed to be reasonable at the time and could not realistically have been the subject of an appeal. But mere overlooking a deadline, whether on account of overwork or otherwise, is unlikely to be a good reason…

42.A similar approach to that which we have just described has been adopted in relation to applications for an extension to the period of validity of a claim form under CPR 7.6. In Hashtroodi v Hancock [2004] EWCA Civ 652, [2004] 1 WLR 3206, this court said that (i) the discretion to extend time should be exercised in accordance with the overriding objective and (ii) the reason for the failure to serve the claim form in time is highly material. At para 19, the court said:

“If there is a very good reason for the failure to serve the claim form within the specified period, then an extension of time will usually be granted….The weaker the reason, the more likely the court will be to refuse to grant the extension.”

  1. This approach should also be adopted in relation to CPR 3.9. In short, good reasons are likely to arise from circumstances outside the control of the party in default…”

Master of the Rolls in Mitchell -v- NGN [2013] EWCA Civ 1537

PREDICTIONS FOR 2015?

We litigators are infinitely wise because we always look backwards at what people did or should have done. Looking forward is infinitely more difficult. My two predictions are:-

  • The law relating to sanctions will continue to give rise to some litigation, but nothing like the rate it did after the Mitchell decision.
  • “Proportionality”, costs and costs budgeting will become a major battlefield.