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High Court judge urges commercial practitioners to cut out the insults

Confrontation: take the temperature down, says judge [1]

Confrontation: take the temperature down, says judge

There is an “urgent need for commercial practitioners to bring a sense of proportion” to hard-fought litigation, a High Court judge said yesterday as he called on lawyers to bring down, rather than raise, the temperature of disputes.

Mr Justice Walker said “it is perfectly possible to be vigorous without being insulting”.

He made the comments while ruling on an application for the claimants in Kazakhstan Kagazy Plc & Ors v Zhunus (Rev 1) [2015] EWHC 996 (Comm) [2] to provide security for costs

At the start of a 238-paragraph judgment, he said: “This case is an example of something which the court is seeing with increasing frequency. Claims are made for large sums. Emergency orders are obtained, without notice to the other side, which freeze assets worldwide up to the value of the sums claimed.

“From then on there is a series of interlocutory applications. They are heavier than they should be. Not weeks, but months, are spent assembling material to be put in evidence. Correspondence is exhibited. In some cases it includes something which correspondence should never include, namely the trading of insults between the solicitors for the parties.

“There has been little, if any, attempt to agree facts or issues. Time estimates for pre-reading are given which underestimate the time needed to read the key evidence and gain a grasp of what the real issues may be. The time needed is far more than it ought to be, largely because no expense has been spared in taking every point. There is an urgent need for commercial practitioners to bring a sense of proportion to this type of litigation.”

The judge continued by putting forward some “universal guiding principles which practitioners should always have in mind”, including that “the court expects solicitors and counsel to take appropriate steps to conduct the debate, whether in advocacy or in correspondence, in a way which will lower the temperature rather than raise it”.

He added: “This remains the case even where – indeed particularly where – any concession is perceived as anathema by one or other or both sides. It is perfectly possible to be vigorous without being insulting.”

Walker J said imputations on others should only be made if they are both “necessary and justified”; otherwise they should be “rigorously excluded”. Even then they should be confined to the immediate matter at hand. “What is needed in order to support an application for a freezing order may differ from what may be required if an imputation is to be made and sustained in a different context.”

He urged sides to dispense with criticising each other and instead focus on working out a timetable “which will enable opposing parties to consider what facts and issues can be agreed, and what information and revised estimates for reading and hearing time can be given to the court prior to the hearing so as to ensure that the court’s time is used efficiently and productively”.

His final principle was that “if it is likely that a point which might be taken by a party, or it becomes likely that a point previously taken by a party, will not significantly advance that party’s case, or will require a disproportionate amount of time or resources if it is to be resolved, then notification should be given that the point will not be relied upon for present purposes. The notification can be accompanied by an appropriate reservation as to the position in future”.

Zaiwalla & Co acted for the claimant, and Peters & Peters for the defendant. Mr Justice Walker granted the application for security for costs, but not at the level sought by the defendant, Baglan Zhunus.

“Mr Zhunus has instructed a legal team who command a premium in the market. There is nothing wrong with this, but the premium must be for him to bear,” the judge said.