Three recent cases have tested the judges’ patience as they waded through bundles so vast that their sole purpose seemed to have been to hinder justice not aid it

Tony Bingham

Construction judge Mr Justice Edwards-Stuart has had a bit of a go in a recent case. Construction judge Mr Justice Peter Coulson has had a bit of a go in another construction case. Court of Appeal judge Lord Justice Jackson has had a bit of a go in another recent case. So, sit up boys and girls, hands on heads, no talking!

Enelco Ltd was the builder of two residential properties for Simon and Linda Gotch under one contract. The parties fell out. The builder’s solicitor said he would adjudicate. “Can’t,” said the solicitor for Gotch. They squabbled - it became a right two and eight (that’s “state” in Cockney rhyming slang, in case you didn’t know). The judge said in court it was time to make a few observations about the way litigation gets into a state. “It is no longer acceptable for solicitors to carry on a war of attrition by correspondence, whether instructed to do so or not: it is the parties who are the subject of the duty [to conduct the process at proportionate costs], not merely their solicitors.”

He went on: “Whilst English law is an adversarial process, that goes to the issues in the case: not to every aspect of the procedure.

“Parties to litigation, in the Technology & Construction Court (TCC) at least, are expected to conduct that litigation in the manner that is most expeditious and economical. Bringing the right issues to trial in the most economical fashion, and taking steps to ensure that the costs are kept at a level that is appropriate to what is at stake, is to be at the heart of the process.”

There’s more: “Unreasonableness, intransigence and taking every point must in my view be regarded as unacceptable because conducting litigation in that way flies in the face of the overriding principle [of proportionate costs].

“These habits must disappear from the landscape of litigation in the TCC. If they do not, offending litigants must expect to bear the costs.

Quite apart from those files bulging with too many papers, the judge was irked by what’s in the damn files

“If access to justice is to have any real meaning, then the aim of keeping costs to the reasonable minimum must become paramount. Procedural squabbles must be banished and a culture of co-operative conduct introduced in their place.This will not prevent contentious issues from being tried fairly - on the contrary, it should promote it.” And then the judge thumped both parties on costs.

I recall a brilliant lecture from when I was a law student. The solicitor lecturer told us about “burning the opposition”. The idea is to wear down the folk on the other side, make them fed up. I confess to having a sneaky suspicion that all that swaggering was a turn-on for this fellow, bent on winning whatever it takes. The judge wants these leopards to change their spots.

Lord Justice Jackson in a case called Iliffe vs Feltham, another building case, became a tad fed up, and also thumped the parties. It’s a problem that I see all the time. His gripe, mine too, is about those lever-arch files crammed with papers. Quite apart from those files bulging with too many papers, the judge was irked by what’s in the damn files.

He writes: “The present appeal bundle … contains 2,550 pages. This includes numerous duplicates and irrelevant documents. There are at least two copies of Dr Goudsmit’s report and at least two copies of the JCT contract. The arrangement of the correspondence is, to put it charitably, chaotic. It is certainly not chronological. For example, I managed to track down the architect’s important letter of 12 May 2011 at page 1,807. His follow-up letter dated 16 June 2011 is tucked away at page 2,148. Mr Dearie’s email of 26 September 2011 (about the gap around the flue) is at page 359. Amongst the jumble of correspondence there are copies of superfluous authorities. The brief chronology furnished by the parties does not contain any page references to aid the hapless judge as he/she struggles to piece together the story of what happened.

“The appeal bundle should be an aid to the court, not an obstacle course. The practice direction governing the conduct of appeals is not difficult to understand. It serves a serious purpose. Experienced practitioners should do what it says.

“In the present case, as I indicated during argument, whatever the outcome of the appeal no party will be entitled to recover any costs referable to the preparation of the bundle.”

The remaining gripe is that of Mr Justice Peter Coulson. It is not on to run a case in adjudication, which “defies common sense”, nor make a claim, which by reason of a piece of paper “miraculously becomes an entitlement to £1.5m”. Don’t “make a mockery of the Notice provision in [the construction contract].”

He is talking about the more baleful effects of the default provisions in the revised Construction Act, the rules which go under the heading of “pipe up or pay up”. True, the case he was talking about turned on its own special facts. He threw it out. Watch out.

Three heavyweight judges throwing the book: well worth it.

Tony Bingham is a barrister and arbitrator at 3 Paper Buildings, Temple