A Commercial Court judge has said that the question of costs “worries me always” and should worry judges in all jurisdictions.
Mr Justice Robin Knowles, said it was not the amount of costs in itself that concerned him most, but the impact of costs “where there is a disparity of economic power between the parties”.
Speaking at an online seminar hosted by the Bar Council earlier this month on reducing costs and delays across jurisdictions, to help celebrate 125 years of the Commercial Court, the judge said it was important to remember that the Commercial Court dealt with cases “of the largest scale”.
He went on: “Some of these cases are not just about money, which could be huge, but about a point of market importance, which is going to come up again and again.
“Some of the cost is not driven by the number of lawyers in the courtroom, but the work outside the court and one has to be alive to that.
“There is so much at stake in some cases that the cost, although substantial, is not disproportionate, given what is at stake.”
However, Robin Knowles J said judges had to be “very vigilant” where there was a disparity in economic power between the parties, perhaps because one of them was a small or medium-sized business.
The challenge then was to “fashion techniques” to ensure participation at proportionate cost.
“The costs question worries me always. It should worry everyone in all jurisdictions.”
Asked by session moderator Colin Passmore, senior partner of Simmons & Simmons, whether the High Court disclosure pilot had achieved its objective of “a change in mindset”, Robin Knowles J said it was “not there yet”.
He said the duty of co-operation under the pilot set out the “mindset that is required”.
The judge said the adversarial process was not about a “battleground” over the obligations of the parties in terms of disclosure – the battleground lay ahead when everyone was arguing over “the points that matter”.
He went on: “If we’re going to have a viable system of commercial dispute resolution, we need more than ever to ensure the co-operation of the lawyers and the parties on the way to the battleground. Disclosure is a case in point.”
Earlier in the session, Marion Smith QC, based at 39 Essex Chambers, said of the 830 claims issued in the Commercial Court in its last pre-Covid year, only 53 went to a full trial and there was a settlement rate of 60%. She said that since the lockdown, indications were that “the trends were very much the same”.
Ms Smith said the lead time for getting most cases listed where the court was approached last month was around six months. However, for the more complex cases needing a trial of four weeks or more, the Commercial Court would not give a date now before January 2022.
Brad Regehr, president of the Canadian Bar Association, said criticism about the cost of litigation had led to “much more aggressive case management” in Canada, particularly in his home state of Manitoba.
Manitoba had got to the point where judges were deliberately double-booking counsel for trials to put pressure on them to achieve settlements.