Time to banish “procedural squabbles” to keep costs proportionate, says senior judge

Edwards-Stuart: no more wars of correspondence

Edwards-Stuart: no more wars of correspondence

Unreasonableness, intransigence and the taking of every point must now be regarded as unacceptable in the post-Jackson world, a High Court judge has warned in setting out how to comply with the overriding objective to deal with cases at proportionate cost.

Calling for an end to “procedural squabbles”, Mr Justice Edwards-Stuart – judge in charge of the Technology and Construction Court (TCC) – said it was “time to say, in the clearest terms, that parties and their solicitors can no longer conduct litigation in a manner which does not keep the proportionality of the costs being incurred at the forefront of their minds at all times”.

Outlining the proper approach to costs as part of his ruling in Gotch & Anor v Enelco Ltd [2015] EWHC 1802 (TCC), the judge said: “It is no longer acceptable – if it ever was – for parties to pursue issues or applications that have no real impact on the issues that are central to the dispute.

“Further, it is no longer acceptable for solicitors to carry on a war of attrition by correspondence, whether instructed to do so or not: it is the parties who are the subject of the duty in CPR 1.3 [under which the parties are required to help the court to further the overriding objective], not merely their solicitors.”

Moving specifically to litigation in the TCC, he said it is “primarily commercial”. Edwards-Stuart J continued: “In a few cases, such as this one, the subject matter is, or is at least said to be, buildings intended for residential occupation.Nevertheless, these are substantial properties. So even in a case such as this, there will only rarely be any justification for fighting or taking points simply “as a matter of principle.

“Whilst English law is an adversarial process, that goes to the issues in the case: not to every aspect of the procedure. Parties to litigation, in the TCC at least, are expected to conduct that litigation in the manner that is most expeditious and economical.

“Bringing the right issues to trial in the most economical fashion, and taking steps to ensure that the costs are kept at a level that is proportionate to what is at stake, is to be at the heart of the process.

“Unreasonableness, intransigence and the taking of every point must in my view now be regarded as unacceptable, because conducting litigation in that way flies in the face of the overriding objective as it is now formulated. These habits must disappear from the landscape of litigation in the TCC. If they do not, offending litigants must expect to bear the costs.”

The judge concluded his general comments by saying that if access to justice is to have any real meaning, then the aim of keeping costs to the reasonable minimum “must become paramount”.

“Procedural squabbles must be banished and a culture of cooperative conduct introduced in their place. This will not prevent contentious issues from being tried fairly: on the contrary it should promote it.”

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