CIVIL LITIGATION REVIEW OF 2015: POETRY, CARPET BOMBING AND DISAPPEARING EXPERTS

We civil litigators cannot be left out of the, apparently universal, need for  an annual review. The annual review last year was headed with the words “prolixity”, “sanctions” and creative writing.  Here we look at poetry, carpet bombing and disappearing experts. A more systematic review can be found in Herbert Smith Freehills’  A Litigator’s Yearbook 2015.

THE PREDICTIONS FROM LAST YEAR

The “predictions” I gave last year were

• “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.”

MOST READ POSTS OF THE YEAR

For the second year running the winner is a post on trial bundles.

• Trial bundles: timing, contents and presentation: and do you know Sedley’s Law?

The next “Top Four” are

• The general update section “Links to recent articles and posts“.
• Drafting witness statement that comply with the rules: a checklist too important to ignore.
• Fundamental dishonesty: 10 key procedural points
• Ten myths about limitation that every personal injury litigator should know.

BEST OPENING WORDS OF A JUDGMENT: PURE POETRY

A late entry, but Sir David Keene’s use of poetry in Distinctive Properties (Ascot) Limited -v- Royal Borough of Windsor and Maidenhead [2015] EWCA Civ 1250 is the best introduction to what could be a mundane topic.

1. “The woods decay, the woods decay and fall”, wrote Lord Tennyson, but this appeal is concerned with the consequences of human intervention in the life of woodlands. In particular, this case is concerned with a Tree Replacement Notice (“TRN”) served by the Council of the Royal Borough of Windsor and Maidenhead as the local planning authority under section 207 of the Town and Country Planning Act 1990 (“the Act”).

THE EVENT THAT BEST DEMONSTRATED THE DIFFERENCE BETWEEN THE  STUDY AND PRACTICE OF LAW

There were several very keen and able law students who attended the “How to get Sued” course at Hardwicke when we raised funds for the Billable Hour appeal.  I mentioned there that the post on trial bundles remained the most read post.

One of my favourite experiences of the year was, when we were having drinks afterwards, hearing Robert Males explain to a (slightly disbelieving) student why a post on trial bundles was so widely read. (It involved Robert, as an articled clerk, being on the receiving end from a judge with “firm” views on the subject).

CASE THAT LED TO THE WORST PUNS

There was an early contender in the  Rihanna case and Jon Lord’s

“Topshop shot to crop costs is a flop, full stop”

I had a post The Rihanna case and Costs: a Quick Coda  However Jon definitely wins the award.

MOST “DICKENSIAN” CASE OF THE YEAR

Gilks -v- Hodgson [2015] EWCA Civ 5 where the case took 10 days at trial; 3 days in the Court of Appeal and £500,000 worth of costs were incurred.  The damages involved totalled £3,500.

Bleak House in the Court of Appeal

MOST LENGTHY PLEADINGS OF THE YEAR

Vincent Aziz Tchenguiz -v- Grant Thornton UK LLP [2015] EWHC 405 (Comm) Mr Justice Leggatt

“The particulars of claim which have been served in the present case flout all these principles. They are 94 pages in length. They include background facts, evidence and polemic in a way which makes it hard to identify the material facts and complicates, instead of simplifying, the issues. The phrasing is often not just contentious but tendentious. For example, the defined term used to refer to three of the defendants is “the Conspirators”. Nor can headings such as “the plot” and “the plot evolves” be supposed to be “in a form that will enable them to be adopted without issue by the other party”.

“…this operative part of the statement of case is preceded by some 50 pages of narrative, liberally interspersed with assertions of fraud, falsity, dishonesty and improper motive which are not at that stage particularised. This form of pleading is typical of Complaints in United States litigation where pleadings serve different purposes and different practices obtain. It has no place in English civil procedure.”

Too Many Counsel Spoiling the Broth

LEGAL WORD OF THE YEAR

“Proportionality” ran a close second. However the winner is “febrile”. The word chosen by Lord Dyson MR to describe the atmosphere created by Mitchell and to explain why Denton was necessary.

Ostriches, Mitchell, Denton and the “Brilliant Readjustment”. 

FAVOURITE NEW LEGAL TERM OF THE YEAR

This goes to Mr Justice Turner in his description of over-sized bundles. “Documentary carpet bombing”

“CPR 1.3 imposes a duty upon the parties to help the court to further the overriding objective. This duty is not fulfilled by documentary carpet bombing.

Trial Bundles, Sedley’s Laws and Documentary Carpet Bombing.

MOST EXPENSIVE INJUNCTION OF THE YEAR

Most probably that obtained by the claimant in AstraZeneca AB -v- KRKA dd Novo Mesto [2015] EWCA Civ 484. The claimant obtained an injunction and ended up paying £27 million on the basis of the undertaking it gave in damages.

Get an injunction – pay £27 million in damages.

MOST VOCAL COMPLAINT ABOUT THE LENGTH OF SUBMISSIONS

This entry is (technically) cheating because it is a decision from last year, and from Canada.  However the post on it  this year gained a lot of attention.

The Hearing Clinic (Niagara Falls) Inc -v- Ontario Ltd, Lewis & Lewis 2014 ONAC 5831 (CanLii) a decision of Mr Justice J.W.Quinn

“[9]     Closing argument was in writing: an eye-glazing, bum-numbing, disc-herniating total of 662 pages (single-spaced, medium-sized font and heavily footnoted). Then there were the answers to dozens of written questions that I forwarded to counsel in the course of preparing these Reasons. It was a superb effort.”

Evidence, costs and the credibility of witnesses

MOST UNFORTUNATE LITIGANT OF THE YEAR

There are numerous contenders for this (basically anyone who has lost a case). However spare a thought for the claimant in Dzekova -v- Thomas Eggar PPL (QBD 17/07/2015. Her first action failed because of a failure to serve the claim form properly. Her second action against the solicitors failed, because of a failure to serve the claim form properly.

Service of the claim form: a sorry tale of a double whammy 

MOST PROBLEMATIC TRIAL BUNDLE OF THE YEAR

There have been plenty of complaints about bundles being too long. However in Absolute Lofts South West London Limited -v- Artisan Home Improvements [2015] EWHC 2632 (IPEC)  a single page was missing from the bundle. This page could have made a large difference to the way that the court assessed damages. The court, however, refused permission to re-open the case.

What a difference a page makes

THE POST THAT LED TO NO RESPONSE AT ALL

In a post in October on Case Summaries I invited practitioners (or judges if so minded) to send in (anonymised) examples of case summaries that represent good practice. None have been forthcoming (there is still time).

The humble case summary: a neglected art

THE POST THAT HAD THE MOST REACTION

The judgment of District Judge Lumb in A & B -v- The Royal Mail Group  [2015] EW Misc B24(CC)(14th August 2015) led to a lengthy comment on the post itself  and a lot of debate on Twitter. However the appeal from that judgment was withdrawn. However much of the criticism is political rather than legal.  The District Judge noted, in his judgment:-

“These so called submissions have no place in a properly prepared skeleton argument. They are, in the widest sense, political assertions that are of no relevance to the judiciary or the Courts who constitutionally are apolitical. If the solicitors consider that the predictive or fixed recoverable costs are insufficient then their argument is with the Government and the Legislature and not with the Judiciary or the Courts whose role is to apply the law.”

Children, Success fees and deductions from damages

MOST PROBLEMATIC BEHAVIOUR OF AN EXPERT DURING THE YEAR (WHERE HAS HE GONE?)

There have been so many cases on experts this year it feels as if there is really a competition for this prize.  However the expert considered in the judgment of Mr Justice Coulson in Van Oord UK Limited -v- Allseas UK Limited [2015] EWHC 3074 (TCC)

“By the end of his cross-examination, he [the claimants’ expert] was accepting every criticism or error being put to him by Mr Lofthouse QC; on occasions, he even conceded points before they had even been suggested.”

“the widespread and important elements of the claim, which he admitted he could no longer support, drove him to say in cross-examination that he was not happy with any of his reports, not even with the one provided during the last week of the trial, just before he gave his oral evidence. If an expert disowns his own reports in this way, the court cannot sensibly have any regard to them.”

It is the only case I know of where an expert has simply left the witness box never to return.

“His abrupt departure from the witness box at a short break for the transcribers, never to return, was an indication of the undoubted stress he was under. But I regret to say that I came to the conclusions that his evidence was entirely worthless. There were a total of twelve different reasons for that conclusion.”

When the credibility of the lay and expert witnesses lies in shreds

MOST PROBLEMATIC WITNESS STATEMENT

Again it is sometimes difficult to believe that there is not an actual competition going on with someone keen to win this award. In In Monks -v- National Westminster Bank PLC [2015] EWHC 2310 (Ch) HH Judge Simon Baker (QC)(sitting as a judge of the High Court) had some acute observations about the witness statements and witness evidence adduced by the defendant bank.

“…it is not a promising start when a witness states on oath at the commencement of his oral evidence that his witness statement has been written in his own words and, immediately thereafter, this is shown to be untrue.”

“That part of my witness statement is not true”: Never a great start to a case

BEST USE OF SOCIAL MEDIA IN PREPARING A CASE

There were a number of contenders here. However the  cross-examination based on twitter messages in Susan Saunderson & Others -v- Sonae Industria (UK) Ltd [2015] EWCA 2264 (QB) was the most telling.

390. On 22^nd February 2013, Mr Swift was involved in the following conversation on Twitter:

“Leon Swift either of you’s jumped on this sonae claim bandwagon?

TC been all over the radio

MC residents living close going to solicitors due to harmful emissions from the plant

MC looks like everyone’s doing it now because it’s shut down

Leon Swift they’ve admitted liability so anyone living or working in the area at the time of the fire can claim

MC get on it ken/tom

MC not for me #too honest

Leon Swift too honest ya, good one matt. I’m getting involved I reckon, pays for the summer holiday if it goes thru

TC ha ha you’re a bad man Leon

MC he’s a fraud Tom

Leon Swift takes a fraud to know a fraud Matthew. Mr ‘I was in that car that crashed ye’ #showmethemoney

MC my neck was sore when Dave crashed #thetruth

Leon Swift Asking for trouble driving in flip flops

MC if you crash give us a shout #whiplashclaim

…

MC I’m sure you was fine that time Dave had a crash

Leon Swift least I was in the car though Matthew

MC so was I”

394. Mr Swift tried to dig himself out of the massive hole created by these exchanges. He said that the use of the term “bandwagon” was not the best choice of words. He agreed that the Tweets could be construed as indicating that any claim he made would be fraudulent. However, he told me that he was not saying at the time that his claim was not genuine. He well understood, he said, that an admission of liability did not mean that one could recover  damages regardless of injury.

Personal injury litigants, lawyers and social media 

CASE WHERE COSTS BUDGETING HAD BIGGEST IMPACT

In Various Claimants -v- Sir Robert McAlpine & others [2015] EWHC 3543 (QB)  the combined budgets were reduced from £30m to less than £19m.

Costs budgeting, proportionality and group litigation

CASE ON COSTS BUDGETING WHICH MADE ME WRITE “OUCH”

Mr Justice Stuart-Smith in GSK Project Management Ltd -v- QPR Holdings Ltd [2015] EWHC 2274 (TCC)

“It is hard to imagine anything more sterile than arguing about a grossly excessive costs estimate. It does not go to the issues, it is wasteful of Court and the parties’ time, and it offends against the obligation to keep costs to the reasonable minimum (both in the fact of the estimate and the need to whittle it down).” 

LARGEST CASE IN WHICH RELIEF FROM SANCTIONS WAS REFUSED

In Sinclair -v- Dorsey & Whitney (Mr Justice Popplewell 20/11/2015) the claimant valued its case at £30 million. It was late in providing security for costs, following a peremptory order. Relief from sanctions was refused.

Ouch! Thinking of drafting a costs budget? Best read this first.

MOST COMMON SEARCH TERMS OF THE YEAR

• “gordon exall blog”
• “civil litigation brief”
• “civ lit brief”
• “drafting a witness statement”
• “civil litigation checklist”

MOST READ POSTS IN ONE DAY

The busiest day was October the 29th.  There were four posts that day

• CPR 3.10 stops a claim from sinking.
• Limitation standstill agreement has wide scope.
• Application for indemnity costs refused.
• Proving things by evidence: such a quaint old fashioned concept.

PREDICTIONS FOR NEXT 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.