COURTESY AND CORRESPONDENCE: “NOTHING WAS SAID TO ACKNOWLEDGE OR ACCEPT THE JUDGE’S CRITICISM OF THE HIGH-HANDED MANNER IN WHICH THE ASSOCIATE SOLICITOR HAD SOUGHT TO TELL THE COURT HOW THE TRIAL WAS GOING TO BE CONDUCTED”

The post yesterday on the decision in  Gubarev & Anor v Orbis Business Intelligence Ltd & Anor [2020] EWHC 2167 (QB) mentioned the issue that the Divisional Court had with the way in which the claimant’s solicitors had attempted to dictate to the court.  It is worth looking at this issue in isolation.  It is no accident that the court spent some some on this issue. It contains an object lesson on how not to conduct correspondence with the court – and more generally.

It is inappropriate to write (for instance) that we require the courtroom to be in the Rolls building…” It is also inappropriate to assert in correspondence that “the trial will be conducted using the Opus 2 platform…” when no direction has been given or even sought to that effect.”

THE CASE

The claimant is bringing an action for libel. The claimant’s solicitors wrote to the court stating what the claimant “required” in order for the case to be heard remotely.

THE JUDGMENT ON THIS ISSUE

The judgment of the divisional court set out the letter that the claimant’s solicitor had written to the court and the trial judge’s response.
    1. The trial was listed for a five-day hearing before Warby J starting on 20 July. On 8 July, the Queen’s Bench listing officer received an email from an associate solicitor at MWE, expressed in peremptory and inappropriate terms. It said:

“[W]e should be grateful if you would consider the following requests based on the parties’ requirements for the courtrooms:

1. We require the courtroom to be in the Rolls building, and to be of sufficient capacity to accommodate the judge, both legal and counsel teams as well as the key witnesses (we estimate there to be at least 15 individuals but will confirm as soon as possible).

2. We require a 2nd courtroom to be reserved for the press and public.

3. The trial will be conducted using the Opus 2 platform to accommodate for some participants attending in person and others attending remotely by video. The Opus 2 technical engineers will require all-day access to the primary courtroom on Thursday 16 and Friday 17 July to set up the hardware and conduct a test run.

4. Please note, it is Opus 2’s strong preference that the courtrooms are in the Rolls building so that they can access the relevant connectivity to ensure the Audio-Visual arrangements are properly working.”

    1. The listing officer sent an email to the associate solicitor in response, explaining that Court 73 had been set aside for the trial, and that none of the courts in the Rolls building that could have accommodated the trial were available during the week of 20 July 2020.
    2. The email also included the comments of the judge about the communication from MWE. The judge described its wording as “unfortunate”, deprecated the use of the word “require” and made it clear that it was not for the parties to make “demands” in such terms. As the judge pointed out, the management of the trial is a matter for the Court, which has to bear in mind the needs of other cases, the limits on its resources, and the applicable substantive and procedural law. The judge went on to say this:

“It is inappropriate to write (for instance) that we require the courtroom to be in the Rolls building…” It is also inappropriate to assert in correspondence that “the trial will be conducted using the Opus 2 platform…” when no direction has been given or even sought to that effect. The Memorandum that accompanies the PTR Order shows that the parties have agreed that this is appropriate. The Judge is not opposed to this. But no order has been made.

What the parties do “require” is the Court’s permission for (i) the use of an off-contract transcriber, and (ii) the provision of a live transcript feed to any external location. The parties will need to make a formal application for the permissions identified above. The Court will also need to know exactly what is proposed by way of any transmission from the main courtroom to any other location: is the proposal to provide text only, or audio and/or video, and in any event to which external locations is it proposed to transmit?

In addition, although the Court may allow evidence to be adduced from witnesses through video links (CPR 32.3), there is no absolute right to adduce evidence in this way. Again, I am amenable, but an application needs to be made. PD 32 para 29.1 and Annex 3 provide guidance on the use of video conferencing, to which reference should be made.

If applications for these further directions are agreed, I will deal with them on paper, without a hearing. Otherwise, there may need to be a further PTR which could be held on Tuesday or Wednesday of next week.”

  1. Following these appropriate admonitions, and the identification by the judge of what was required, MWE, through

LATER IN THE JUDGMENT

The Divisional Court noted that there was little by way of contrition from the claimant’s solicitors for their high-handed manner.

  1. We have before us a witness statement from Ms Lynsey McIntyre, the partner in MWE responsible for the preparation of the claim for trial. She states that the associate solicitor recognised that her email to the listing office was unfortunately worded and “regretted that” following discussions with Ms McIntyre which took place shortly after receipt of the judge’s comments. However, the application itself merely said that: “the parties regret that these orders were not sought at the PTR and respectfully request that the Court grants the orders in the form sought on the papers.Nothing was said to acknowledge or accept the judge’s criticism of the high-handed manner in which the associate solicitor had sought to tell the court how the trial was going to be conducted.