COVID REPEATS 45: WE DON’T CARE WHAT THE JUDGE ORDERED WE ARE GOING TO PUT WHAT WE WANT INTO THIS ORDER

There are many strange examples of conduct reported on this blog.  One example is in  Webb Resolutions Ltd v JV Ltd (t/a Shepherd Chartered Surveyors) [2013] EWHC 509 (TCC). Put simply a judge made an order at a hearing, one party didn’t like the order so “haggled” with the other side as to the terms to put into the order when it was being drawn up. This did not go down well.

THE CASE

Directions were made by a High Court judge in a hearing in November 2012. The parties were to 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.

Three days after the hearing the Claimants’ counsel sent a draft order to the Defendants’ counsel that bore almost no relation to what I had directed. In effect, the draft order provided for disclosure, exchange of witness statements and expert evidence on all issues in the case after which there was to be a further CMC to consider the precise scope of the issues to be determined at the first hearing. By contrast, the directions that I had given limited disclosure and the exchange of evidence to the assignment and lending issues. This was, as I have already explained, intended to avoid the costs of dealing with the valuation issues in case the judgment at the first trial disposed of one or more of the claims altogether.”

THE CLAIMANT’S SOLICITORS “EXPLANATION” TO THE COURT

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 judge stated:
I regard this statement as disingenuous. Rosling King were having no such difficulty. They were, quite simply, trying to persuade the Defendants to agree to an order that was in different terms to that which had been directed by the judge. No application had been made to vary the order (under the provision giving permission to restore) or for permission to appeal (although an appeal would have faced difficulties since the Claimants had effectively consented to the terms of the order).”

THE DEFENDANT’S SUCCESSFUL APPLICATION

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 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.