High Court hits out at “extremely aggressive” litigation from bygone era

Not a modern approach to litigation

A High Court judge has told the parties in a major group litigation case to stop using “extremely aggressive litigation tactics” that belong to an earlier era.

Mr Justice Fraser said the legal advisers for the parties – Freeths for the claimants and Womble Bond Dickinson for the defendant – “regularly give the appearance of taking turns to outdo their opponents in terms of lack of cooperation”.

The case, being brought by 600 mostly sub-postmasters under a group litigation order, arises out of alleged problems with an IT system that was introduced by the defendant; the ruling concerned an application by the defendant to strike out passages from the six lead claimants’ witness statements.

Fraser J said it was a “large and complicated” case, with costs of £10m already run up by the two sides, and noted that he has held 10 separate interlocutory hearings in a year, before the trial of even the first issues has been held.

“Behaviour from an earlier era, before the overriding objective emerged to govern all civil litigation, has appeared to become almost the norm, at least from time to time…

“It appears to me that extremely aggressive litigation tactics are being used in these proceedings. This simply must stop. It is both very expensive, and entirely counter-productive, to proper resolution of what is so far an intractable dispute.

In his first procedural ruling last November, the judge strongly criticised the behaviour of both parties, which he said was not cost-effective, efficient, or in accordance with the overriding objective.

“A fundamental change of attitude by the legal advisers involved in this group litigation is required,” he said then. “A failure to heed this warning will result in draconian costs orders.”

However, nearly a year on, he said these comments “must have fallen on deaf ears, at least for some of those involved in this case”.

Fraser J added: “There is a limit to what the court can do other than, yet again, to exhort the parties to remind themselves – daily, if necessary – of what the overriding objective requires.”

The judge said “this counter-productive approach lurks in the background” to the application before him.

The defendant first raised concerns about the scope of the claimants’ evidence in October 2017, some 10 months before the statements were actually served.

“That shows considerable, if not almost supernatural, foresight on the part of the defendant,” he observed.

The application featured an agreed bundle of authorities of 25 different judgments; skeleton arguments of 36 and 49 pages respectively; and a hearing bundle containing, amongst other things, 62 letters passing between the solicitors for the parties

“Attempts are being made to outmanoeuvre one another in the litigation, and tactical steps have led to constant interlocutory strife. This is an extraordinarily narrow-minded approach to such litigation,” Fraser J said.

He dismissed the application, finding that it “appears to be an attempt to hollow out the lead claimants’ case to the very barest of bones (to mix metaphors), if not beyond, and to keep evidence with which the defendant does not agree from being aired at all”.

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