Judges express concern over growing hostility in litigation

Andrew Baker J: General increase in hostility

Three High Court judges have expressed concerns about the increasing prevalence of aggressive approaches to litigation where every point, good or bad, is taken.

Last month, in Navigator Equities Ltd & Ors v Deripaska [2020] EWHC 1798 (Comm), Mr Justice Andrew Baker said that, in the 30 years in which he had worked in commercial dispute resolution, “there has been a significant general increase in hostility and aggressiveness in the conduct of disputes”.

He continued: “The taking of any and every point, good or bad, and other failures to display proper independence from the litigating client is treated too often as if it were a normal or appropriate adjunct of well-funded, hard fought, business disputes, particularly if there are issues of dishonesty involved.”

These comments were cited by Master Davidson last week for having a “certain resonance” in Vale SA v BSG Resources Ltd & Anor [2020] EWHC 2021 (Comm).

The hearing was an application to set aside an order that Dag Lars Cramer, the director of a company which was a judgment debtor, should attend court to provide information that would enable the judgment creditor to enforce the debt.

The master said: “The points taken on Mr Cramer’s behalf were not a mixture of good and bad; they were all bad. Further, the language of the correspondence and submissions was inappropriate to Mr Cramer’s situation.

“He is an officer of a company which owes the claimant a sum in excess of US$2 billion, none of which has been paid. He has been made the subject of a routine procedure which the claimant was entitled to follow and to which he could not reasonably object.

“Some recognition of that would have been preferable to the tones of outrage and indignation which were employed.”

The master said spending £254,000 on the application was “inappropriate and disproportionate both in amount and object”.

He continued: “Whilst in form offering cooperation, the substance and reality of Mr Cramer’s approach has been quite the opposite. Where the precise responsibility for these matters lies is not something that I can or need determine.

“All I will say is that parties to litigation and their professional advisers are not bound to take bad or hopeless points; they are not bound to adopt a needlessly antagonistic stance to their opponents, and both things are likely in the end to operate directly contrary to their interests.”

Meanwhile, in a ruling from April published last week, Chief Master Marsh talked about how the connected contract and defamation claims before him have been pursued on a “no holds barred” basis.

In Astra Asset Management UK Ltd & Anor v MUSST Investments LLB & Ors [2020] EWHC 1871 (Ch) – dealing with disclosure applications – he said: “They are an example of parties to business litigation… pursuing their respective claims and defending those brought against them with great vigour and at great cost.

“Up to a point it is open to parties to conduct litigation in that way, but it is not trite in the context of this claim to remind the parties that the court is required to manage the litigation in accordance with the overriding objective and that, as a consequence, the court must have regard to the need to manage litigation justly and at proportionate cost.”

The master added that one of his concerns was “an apparent disparity of spending power” between the parties. In such circumstances, the court “must be astute to recognise whether one party is seeking to use procedural steps in a manner that is oppressive”.

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