Fixing hearings around barristers’ diaries “fundamentally the wrong approach”, judge says


Fraser J: clear case of “tail wagging the dog”

A High Court judge has said that fixing trial hearings in a complex group litigation case “around the diaries of busy counsel” was “fundamentally the wrong approach”.

Mr Justice Fraser also warned of “draconian costs orders” if legal advisers continued to behave badly, for example by failing to lodge court documents, “failing even to consider e-disclosure questionnaires” and “threatening pointless interlocutory skirmishes”.

Fraser J said that only a month after the group litigation order (GLO) in the case was made in March this year and he was appointed managing judge, he issued a directions order requiring a case management conference (CMC) to take place in October.

“The order was met with a wholly unsatisfactory response from the clerks to leading counsel for the claimants, who notified the court that the hearing that had been ordered could not be accommodated on that date, but the court would be notified of a date that could be accommodated by all counsel jointly, once their clerks had agreed this between themselves.

“This response was referred immediately to me, and appeared to be a clear case of the tail wagging the dog.

“It is notable that judicial availability, and the dates ordered both in the GLO and in Directions Order No.1, were considered such a secondary consideration to counsels’ diaries.”

Fraser J said the group litigation involved claims by over 500 sub-post masters and Crown Office employees against the Post Office arising from problems with the Horizon computerised accounting system.

Delivering judgment in Bates and others v Post Office [2017] EWHC 2844 (QB), Fraser J said the “large and complicated” litigation needed to be conducted in accordance with the overriding objective, with directions to ensure it proceeded “expeditiously and fairly”.

He said the facts were “hotly contested”, there was a “yawning gulf” on liability and resolving all the issues was likely to take “some time”.

Fraser J said that, before last month’s CMC, describing the defendant’s approach as “leisurely, dilatory and unacceptable in the modern judicial system” was a “considerable understatement”.

At the CMC, the defendant took “a more constructive” approach, but a day after the trial was ordered for November 2018, a letter was received from leading counsel for the defendants, Anthony de Garr Robinson QC.

“This explained that he already had a commitment in his professional diary in the Companies Court in the Chancery Division for three weeks, due to commence in late October 2018, and this meant that he would be unavailable for any trial in November 2018.

“He therefore sought the trial date being moved into 2019, a possible date that had been discussed in outline at the CMC the day before. This was not opposed by the other party.”

Rejecting this approach, Fraser J said that although Mr de Garr Robinson’s “other matter” was “very complicated and of extremely high value” at £1bn, the nature of the Post Office litigation, the interests of the administration of justice and the consequence of the delay outweighed any other considerations.

“Fixing hearings in this group litigation around the diaries of busy counsel, rather than their fixing their diaries around this case, is in my judgment fundamentally the wrong approach.

“If the court embarks upon a course of organising hearings around counsel, more and more time will creep into the timetable of the litigation as a direct result. This applies to all hearings, but particularly to trials of substantive issues.”

Fraser J said counsel of high repute were “extremely valuable in the marketplace and have many potential clients” and “all work extremely hard”, and usually had a large number of hearings in their diaries.

“Fitting hearings around their availability has all the disadvantages of doing an intricate jigsaw puzzle, with none of the fun associated with that activity. This difficulty becomes even more acute if hearings of four weeks and longer are required, which in this group litigation they will be.

“Whilst it may be regrettable that one party might be deprived of their counsel of choice because of listing, that is a not unusual situation.

“Where there is reasonable notice of a diary conflict, which there undoubtedly is in this instance, arrangements for a suitable replacement can invariably be made by the disappointed party, if a replacement is necessary.”

Fraser J said a copy of his draft judgment had been shown to the judge in charge of the Queen’s Bench lists.

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