Judge criticises solicitors for sending him letter during trial

Fraser: Letter should not have been sent

A High Court judge has criticised solicitors who sent him a letter during a trial trying to explain points that had arisen during cross-examination.

Mr Justice Fraser said Birketts, acting for the claimants in Beattie Passive Norse Ltd & Anor v Canham Consulting Ltd [2021] EWHC 1116 (TCC), should not have sent the letter and that he ignored its contents.

He made the comments in dismissing what he described as a “weak and speculative claim” for professional negligence against a firm of consulting engineers.

The letter was sent to him on a non-sitting day, after the first two days of the trial. Fraser J said it contained “a lengthy explanation” addressing certain points that had been made by the defendant’s counsel in his cross-examination of two witnesses for the claimants, together with argument in respect of those points.

“Some further disclosure was given by the claimants arising out of cross-examination on 3 March 2021, together with submissions based on a contemporaneous email that was produced. This document seemed to be part submission, part quasi-evidence, and part explanation.”

Stressing the importance of open justice, the judge emphasised: “Such a letter should not have been sent to the court. It was necessary to explain to the parties that I intended simply to ignore it, save and in so far as its contents may be repeated in closing submissions.

“There is no procedural place for sending such material directly to the trial judge during a trial itself in this way, attempting to meet or explain away evidential points made in cross-examination (which in procedural terms leads to evidence, namely the answers of witnesses to those questions) by way of a letter to the judge.”

He was also critical of the way both sides “seemed almost to be surprised that the trial had actually come upon them”. Reynolds Colman Bradley were the defendant’s solicitors.

As a result, Fraser J said, there were four “entirely different” trial bundles containing multiple volumes.

“This regrettable failure to organise the trial documents correctly, and by agreement, caused a degree of difficulty in terms of efficiency.

“Both counsel were highly professional in dealing with the potential confusion and distraction caused by this failure of the necessary co-operation required by the parties and their solicitors in advance of the trial.

“However, such a state of affairs simply should not occur for any trial, and particularly not in a multi-million pounds professional negligence claim in a specialist list in the High Court.”

The judge noted that the transcription service was only arranged on 3pm on the day before trial, again causing “some difficulty”, while the parties were unable to agree a single list of issues, nor whether certain legal arguments were open to each other on the pleadings.

“The very least that parties should be able to agree on, in advance of a trial, are the issues that the court is being asked to resolve; and what contemporaneous documents exist that might be pertinent to those issues.

“I will only identify and resolve these issues to the degree necessary to decide this case, but the state of the documents has made conducting the trial far more difficult than it should be. Parties should co-operate in such matters, and this is required by the overriding objective.”

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