Friday, August 23, 2019

Judgment No 1: Laying down the Law

I hadn't read the first judgment in Bates and others v Post Office' judgment until recently. I thought it was about disclosure. It's not. It's a boll*cking.

By the time it appeared on 10 November 2017 both parties had managed to annoy the litigation's managing judge Sir Peter Fraser to a considerable degree. In the judgment he lists exactly how:

- "failing to respond to proposed directions for two months";
- "failing even to consider e-disclosure questionnaires";
- "failing to lodge required documents with the court";
- "failing to lodge documents in good time";
- "refusing to disclose obviously relevant documents";
- "resisting any extension to the "cut-off" date for entries of new claimants on the Group Register";
- "threatening pointless interlocutory skirmishes".

The formal order which created the Bates and others v Post Office group litigation (GLO) was made on 22 March 2017.  The rules of the GLO stated that the first case management conference (CMC)  had to be held on the first available date after 18 October 2017. Sir Peter Fraser was appointed managing judge and on 25 April ordered that the first CMC would take place on 19 October.

Unfortunately, that date didn't work for the claimants' lawyers. Inadvisedly, they told the judge they'd get back to him when they'd agreed a date which suited both parties. Bad move. As Sir Peter says:
"This... appeared to be a clear case of the tail wagging the dog. It is notable that judicial availability, and the dates ordered both in the GLO and in Directions Order No.1, were considered such a secondary consideration to counsels' diaries."
The judge told the parties a witness statement would be required before he would consider shifting the date of the first CMC. Astoundingly: "this particular direction was then wholly ignored."

Another bad move. Sir Peter ordered the first CMC would take place on 19 October 2017.

Somehow the Post Office failed to take note of how thin Fraser J's patience was wearing. Shortly before 19 October came round the Post Office's lawyers suggested there didn't need to be any trial in the litigation until 2019 at the earliest. His Lordship was not amused:
"To describe this approach as leisurely, dilatory and unacceptable in the modern judicial system would be a considerable understatement."
The Post Office came into line and the first trial was fixed for November 2018. The day after this was agreed, the Post Office's leading counsel (Anthony de Garr Robinson QC) told the court he was not available, and could the first trial be punted into 2019 anyway?

Interestingly, this was not opposed by the claimants. However, Sir Peter "declined" this application for a further delay, and said he would hand down his written reasons. Hence judgment no 1 in this litigation - both a boll*cking and a reminder to our well-remunerated learned friends that time, for the claimants and the defendant, is very much an issue.
"Fixing hearings in this group litigation around the diaries of busy counsel, rather than their fixing their diaries around this case, is in my judgment fundamentally the wrong approach... On the face of it, a delay in the first round of substantive hearings from November 2018 into early 2019 could be viewed as modest. However, in this case it would mean that the first substantive hearing would commence almost two years after the making of the GLO. That is simply far too long in my judgment. The delay until November 2018 is more than enough as it is... All of the many claimants, and the defendant, need resolution of the matters in issue."
The judge concludes by stating:

"A fundamental change of attitude by the legal advisers involved in this group litigation is required. A failure to heed this warning will result in draconian costs orders."

The parties were on notice.

Click here for the full judgment - it's only 21 paragraphs long and definitely worth a look.

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