The overriding objective of the Civil Procedure Rules, which have governed the conduct of civil litigation in this country for just over 20 years, is that cases should be dealt with justly and at proportionate cost.
To further that objective, the court actively manages cases by, amongst other things, (a) encouraging the parties to co-operate with each other in the conduct of the proceedings and (b) identifying the issues at an early stage.
Regrettably, some litigators still frustrate that objective. They take every conceivable point-good or bad- and seek to obfuscate rather than clarify and narrow the issues. That only leads to unnecessary costs which neither client wants, and does not encourage settlement, which is normally what both of their clients want.
Sometimes the correspondence between solicitors takes on a life of its own with neither side being prepared to concede anything. Disputes of no relevance to the substance of the claim can become prolonged.
One wonders how much clients know about what is being done on their behalf.
In the recent case of Ventra Investments Ltd v Bank Of Scotland Plc  EWHC 2058 (Comm) (30 July 2019) the Claimant applied for the trial date to be vacated. The trial was currently listed to begin on 15 January 2020, with a time estimate of 20 days, but the Claimant submitted that a fair trial was no longer possible. Following a three day hearing, the judge delivered a 54 page judgment dismissing the application and encouraging the parties to agree a revised length of trial.
The case was proceeding in the Commercial Courtand the Commercial Court Guide says that:“The Court expects a high level of co-operation and realism from the legal representatives of the parties. This applies to dealings (including correspondence) between legal representatives as well as to dealings with the Court.”
The Judge was highly critical of both parties’ solicitors’ conduct of the litigation, commenting that:
- “BOS has been inclined to adopt an unreasonably narrow and self-serving approach to relevance in performing its disclosure obligations.”
- “On the other side, the large number of VIL's applications which I have refused as unnecessary or misconceived demonstrate a lack of focus on the really important issues and on the most cost-effective and proportionate way of getting what is really necessary.”
- “The correspondence between Hausfeld and DLA Piper has seemed on occasions to be a dialogue of the deaf, neither side engaging properly with the logic of the other's position.
- “The result has been a considerable waste of the parties' and the Court's resources.”
Solicitors will normally serve their clients well by engaging constructively with each other with a view to identifying and narrowing the real issues and thereby enabling the litigation to be conducted as efficiently as possible, if a settlement cannot be reached.
A High Court judge has attacked commercial lawyers for failing to engage properly with each other in the build-up to trial. Mr Richard Salter QC, sitting as a deputy judge of the High Court, said in Ventra Investments Ltd v Bank Of Scotland plc that both parties needed to act promptly and warned the court was ‘unlikely to be sympathetic’ if instructions were not carried out.