CIVIL PROCEDURE: THE BEHRENS' EFFECT

His Honour Judge Behrens, the resident Chancery judge in Leeds, retires tomorrow. This led me to consider the contribution he has made to civil procedure.

JOHN BEHRENS AT THE BAR

I could begin by telling of the  meticulous neatness of John’s room whilst he was in practice, (however that may not be quite true). What is definitely true, however, is John’s generosity with his time and expertise which he freely gave to other members of chambers.  These matters are often forgotten.  For many years  John served as a fount of knowledge and support to his colleagues at 10 Park Square (as it then was).

Also John’s guidance and patience with his pupils should be remembered (some of us may have required more patience than others).  He clearly inspired legal erudition. One of his pupils went on to become a Law Commissioner.   John  once remarked that he had had a number of pupils and  “only one had not written a book”. (That errant pupil is now a criminal Q.C. – and there is still time).

That led me to think what books judge Behrens could have written over the years. We both shared a chambers with John Munkman and there are  several books that have the Munkman nomenclature.  What books, I pondered, could have the Behrens’ title?  I confined myself to issues relating to procedure (the Chancery issues being beyond my normal ambit).

BEHRENS ON PLEADING

John’s pleadings (and skeleton arguments) at the Bar were a model of brevity. Concise, with no wasted words.  As a judge he has presided over two significant cases in relation to pleadings (in both cases lengthy and rambling Particulars of Claim were struck out).

Dunn -v- Glass Systems (UK) Limited [2016] EWHC B2 (QB) where particulars of claim, drafted by counsel against his direct access clients,  were struck out.

“Simply reading through the Particulars of Claim reveals that it is prolix and largely unintelligible. The disproportionate length at which the document is pleaded renders it impossible to identify the actual points which it seeks to make. It is not merely that the Particulars of Claim do not constitute a concise statement of the facts on which Mr Dunn relies, but that no identifiable statement of those facts is offered at all. It would be disproportionate to attempt to set out fully even the major faults with Mr Dunn’s statement of case”

Hague Plant Ltd -v- Hague [2014] EWCA Civ 1609

Where the Court of Appeal upheld Judge Behrens’ decision to refuse to allow the claimant to amend Particulars of Claim.

“It is evident that the Judge himself paid full regard to the requirements of economy and brevity in formulating his own reserved judgment, in which he dealt with the extensive submissions and documentation with admirable focus in a mere seventeen pages”

Lord Justice Briggs observed:

“But the sheer number of examples does not sufficiently describe the sense of bewilderment and confusion experienced by a reader of the pleading as a whole. So far from being a concise statement of the primary facts relied upon in support of the claim, it comes across as a rambling narrative of the supposed twists and turns of the defendants’ case about the matters in issue, serving no apparent purpose, and obscuring, rather than clarifying, the claimant’s own case.”

BEHRENS ON BUNDLES

The one thing about reading a Behrens’ judgment is that you have to read right to the end. So in Burnard -v- Burnard [2014] EWHC 340 (Ch)

“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.”

BEHRENS ON WITNESS STATEMENTS

Similarly the final paragraph of Royal National Institute for Deaf People -v- Turner [2015] EWHC 3301 Ch

“I cannot leave this case without expressing my gratitude to all those involved in its preparation. It was helpful to have electronic copies of the bundle. The skeleton arguments, closing oral and written submissions were of a high quality and of great assistance in determining a by no means straightforward and anxious case. In so far as there is a criticism of the preparation it relates to the preparation of and contents of the witness statements which were not confined to the factual material which they addressed but included numerous comments and statements of opinion which were, of course, inadmissible. The parties are referred to Appendix 9 of the Chancery Guide for details of what should and should not be included in a witness statement.

BEHRENS ON RELIEF FROM SANCTIONS

At a time when even the Master of the Rolls said “ridiculous” decisions were being made as a result of the decision in Mitchell commonsense could be found in Leeds.

In Harrogate Borough Council -v- Secretary of State for Communities & Local Government & Zammitt [2014] EWHC 1506 (Admin) relief from sanctions following a two day delay in service of a notice of appeal.

In Priestley -v- Dunbar [2015] EWHC 987 (Ch) an appeal was allowed against a refusal to set aside judgment.  The district judge had applied the “Mitchell” principles prior to the “Denton” decision.

BEHRENS ON ALLEGATIONS OF JUDICIAL BIAS

In Howe -v- Gossop [2016] EWHC 2169 (Ch) it was held that there was no judicial bias when a trial judge had made findings against a party on a number of issues in a trial. It was appropriate for the same judge to hear the remaining issues.

BEHRENS ON SERVICE OF THE CLAIM FORM

In Instone -v- Prosecco (Leeds) LImited [2016] EW Misc B13 (CC) the claimant succeeded in an application to extend time for service of the claim form when the need arose because the defendant had to be restored to the register.

BEHRENS ON REAL EVIDENCE

In Bramwell -v- Robinson [2016] EWHC B26 (Ch) one of the disputes related to the size and safety of speed bumps constructed along a shared road.

59. When I visited the site for the view I drove my Volkswagen Passat over them. On a number of occasions I caught the underside of my car. Mr Robinson’s reaction to this in evidence was that my car was in need of repair.

BEHRENS ON THE BEST TO APPROACH A CASE

There is one comments, heard in pupillage, which shows the importance of sharing a room with a pupil supervisor.  He was on the phone to a very prominent solicitor in a very prominent firm.  All kinds of legal questions were being put, the response came:

“Let’s get the facts straight before we start worrying about the law”.