3 August 2016Print This Post

High Court judge criticises parties and their solicitors for “attritional warfare”

High Court: parties are not co-operating effectively

High Court: parties are not co-operating effectively

A High Court judge has criticised the conduct of the parties and solicitors on both sides of a personal injury dispute for engaging in the type of “attritional warfare” that has been dying out.

Mr Justice Edis said that “sensibly co-operating” parties could have settled the issues in front of him.

In Hayden v Maidstone & Tunbridge Wells NHS Trust [2016] EWHC 1962 (QB), the judge was dealing with two applications that flowed from a decision by Mr Justice Foskett in May to allow the very late submission of covert video surveillance evidence by the defendant that questioned the extent of the claimant’s ongoing injuries.

The claimant was a cardiac physiologist who, in 2007, suffered a back injury when attempting to help in the transfer of a patient from a trolley on to a cardiac investigation table. East Sussex firm Dawson Hart is acting for the claimant, and BLM in Leeds for the defendant.

Edis J said: “Both applications are hotly disputed, as is the way of this litigation at least in the recent past. It appears to me that this is a case where the parties are not co-operating effectively. Foskett J was rightly critical of the conduct of the defendant’s solicitors in his judgment [for the late submission of the evidence] and underlined the need for proper professional cooperation.”

He said on this occasion “the lack of co-operation is at least shared and that a large slice of the fault lies on the claimant for taking wholly unmeritorious points and making unfounded allegations of bad faith against the defendant’s lawyers.

“I express the hope that in the final pre-trial preparation the parties are able to agree what can be agreed in the usual way. The trial judge may be able to deal with any failures in this regard by appropriate costs orders.

“I regret to say that a great deal of time and money has been spent by solicitors on both sides attacking the conduct of the opposing party in witness statements which simply generates yet further statements in response.

“It appears to me that the case has been bogged down in attritional warfare of a kind which used to be far more common than it is now. The issues before me were all capable of resolution by agreement by parties sensibly co-operating towards a trial. This is especially so since a detailed order for directions has been recently made by Foskett J after another long and contentious hearing.”

By Neil Rose


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