“IT IS NOT ACCEPTABLE ORAL ADVOCACY TO REDUCE WRITTEN SUBMISSIONS TO LITTLE MORE THAN A SERIES OF REFERENCES THAT A JUDGE CAN THEN LEFT TO FIND ACROSS A VAST BUNDLE”

The closing lines of the judgment of HHJ Pelling QC (sitting as a High Court judge) in Libyan Investment Authority v Credit Suisse International & Ors [2021] EWHC 2684 (Comm) highlight many issues in relation to civil advocacy. In particular the need for accurate time estimates and proportionality in the preparation of applications and bundles.

“… the parties have been content to prepare this case without either restraint or constraint or any attempt at achieving proportionality with the result that the bundle Master Index alone runs to 44 pages; the hearing bundle consisted of 36 separate bundles of evidence and attachments to witness statements running to many thousands of pages (I have not counted them and they were not numbered sequentially as they should have been), 150 authorities and numerous other appended legal materials”

THE CASE

The judge heard a number of applications for summary judgment and to set aside the validity of the claim form.  He concluded that the claimants’ action was statute barred in any event.

THE POSTCRIPT TO THE JUDGMENT

The judgment ended with a short postscript.

1. 1. These applications were listed with an estimated length of time required for pre-reading and length of hearing that was manifestly too short having regard to the number of parties involved, the number of issues raised, the volume of evidential material generated and authorities relied on. This led to an entirely unsatisfactory shortening of the oral submissions in an attempt to force them into a hearing that was too short. This had as its inevitable consequence that on the last day submissions were spoken at a speed that made them almost incomprehensible and which led to no less than two complaints from the transcriber about the speed at which submissions were delivered. On the last of these occasions the transcriber said she was unable to continue, which resulted in an early mid-day adjournment and whilst things improved thereafter it did so only by recourse to references, ostensibly for my note, carrying with it the expectation that I would unbundle all the points relied on after the hearing had been completed.

1. 1. None of this is remotely acceptable. Oral advocacy remains the main-stay of the way civil litigation in England and Wales is conducted and it is not acceptable oral advocacy to reduce submissions to little more than a series of references that a judge can then be left to find across a vast bundle (assuming that all the references given are accurate) in an attempt to provide a coherent judgment within an acceptable time.

1. 1. All this was made even more unacceptable because the parties have been content to prepare this case without either restraint or constraint or any attempt at achieving proportionality with the result that the bundle Master Index alone runs to 44 pages; the hearing bundle consisted of 36 separate bundles of evidence and attachments to witness statements running to many thousands of pages (I have not counted them and they were not numbered sequentially as they should have been), 150 authorities and numerous other appended legal materials. This is material that would have justified a trial measured in weeks rather than days, not an application hearing listed as it was. I will consider on hand down whether to impose a cost sanction in respect of this conduct.

1. Finally, I should record that although this judgment is being handed down on the date referred to at its head, the parties were informed that the judgment was ready at the start of this term. It is being handed down now only because it was this date that all parties and their counsel were able to make themselves available for the hearing.