In a post-script to the judgment in Invest Bank PSC v El-Husseini & Ors [2023] EWHC 2302 (Comm) Stephen Houseman KC, sitting as High Court Judge, raised concerns over the number of authorities cited and the impact this has on time estimates. The skimming over the vast number of cases leads to undesirable “forensic speed dating”.
“Greater discipline is required by advocates to limit the citation of authority to what is strictly necessary and indeed permissible.”
THE CASE
The judge had given judgment in relation to a number of preliminary issue heard over a two day hearing.
THE POST-SCRIPT
Post-script: citation of authorities & hearing estimates
97. I wish to express concern at the proliferation of cited authorities in hearings in the Commercial Court. It is not reasonable to expect a judge in a three day hearing, whether or not involving cross-examination of expert witnesses on foreign law, to assimilate over 150 authorities. By way of isolated example, it is not necessary to cite Denton & others v. TH White – Practice Note [2014] EWCA Civ 906; [2014] 1 WLR 3926 (as well as Court of Appeal authorities considering its application) at a hearing taking place in mid-2023. Practitioners can assume that part-time and full-time judges are aware of these fundamental principles by now, intended as they were to “change the culture of civil litigation” in this jurisdiction: see FXF (above) at [68]. The principles are comprehensively discussed in the 2023 White Book at Volume 1, pp.126-141.
98. Greater discipline is required by advocates to limit the citation of authority to what is strictly necessary and indeed permissible. This in turn involves an understanding on the part of court users and other practitioners. Time estimates are required to assume that the court will be taken through authorities relied upon during the hearing. I shudder to think how long that would have taken in this instance without my injunction to counsel to address me only on those authorities they felt were absolutely necessary for me to understand. I doubt the transcriber would have appreciated the speed at which it would have been done if covering any more of the cited authorities, or that I would have gained a meaningful understanding of each case during such forensic speed-dating exercise. Far too many authorities were cited.
99. I chose to allow this trial to go ahead and kept it within the agreed estimate. I could just as easily have adjourned it with adverse costs orders and directed it to be re-listed with a much longer hearing time next year, vacating the substantive trial and causing that to be re-listed in 2025. I have yet to determine the appropriate costs order.
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