UK: The View From The Bench

Last Updated: 3 November 2017
Article by Vannin Capital

Authored by Sir Bernard Eder, Essex Court Chambers

As I now write, it is almost 40 years to the day since I started as a pupil on 1 October 1975 at what were then the Chambers of R A MacCrindle QC in 4 Essex Court, Temple. I am not sure how much had really changed in the previous 250 years since the building had originally been constructed in 1720 - shortly after Alexander Pope published The Rape of the Lock. But there is no doubt that much has changed since 1975.

In those days, sets of chambers were generally small in size – minnows (perhaps 10 or so tenants) compared to some of the giants (75+) of today. At No. 4, the day often started off with the narrow wooden staircase being washed down with a pungent detergent. There was no heating (apart from the odd small electric fire or oil-filled radiator); no photocopying machine (I remember the first gestetner-type cyclostyle machine being installed shortly after becoming a tenant); and, of course, no "search engines" let alone any email or internet. Conferences/consultations almost invariably took place in Chambers. Other communication with the outside world was limited to the telephone or the then revolutionary "telex". Opinions were mostly written in long-hand and then typed-out by secretaries with mucky carbon copies that smudged easily and seemed to spread their dark blue ink generously in every direction.

Bob MacCrindle (who left to join Shearman & Sterling in Paris) and Michael Mustill (later Lord Mustill) occupied rather grand rooms on the first floor overlooking Essex Court – with the young John Thomas (now the Lord Chief Justice) squeezed in between in what can only be described as a large cupboard. The grandly named "pupil room" was even smaller – a dark dungeon in the basement with a narrow window not much bigger than a postage stamp shared by a number of hopefuls - including Ros Higgins (now Dame Rosalyn Higgins, former president of the International Court of Justice and Angus (now Lord) Glennie). No pupillage awards then!

Even with Lord Denning at the helm (still going strong in 1975 at the age of 76 with another seven years to go before he eventually retired in 1982 at the age of 83), the common law was developing quite slowly. It is now difficult to believe that the possibility of claiming damages in tort for economic loss had only been properly recognised by the House of Lords just over 10 years previously in Hedley Byrne (1964); that it was only eight years since Parliament had enacted the Misrepresentation Act 1967; and that the old rule that the English court could only order the payment of debts or damages in English currency was only abandoned by the House of Lords in Miliangos in that very year i.e. 1975. Although the criminal offences of maintenance and champerty had only recently been abolished by the Criminal Law Act 1967, litigation funding did not exist – and, indeed, was inconceivable.

Civil litigation was, in many respects, little more than trial by ambush. Pleadings were generally very short (ah, those were the days!). Given the non-existence of desktop computers, laptops, data-bases, emails or mobile phones, discovery (i.e. disclosure of documents) was often quite limited. There were no witness statements (these were not introduced until, I think, the early 1980s); no case memorandum; no list of issues; and no skeleton arguments or written opening submissions. The result was that, apart from what the judge might glean from the terse pleadings, he/she would know very little about the case in advance of the trial until the plaintiff's counsel stood up in court and opened the case orally – an exercise which was often carried out over a number of days by taking the judge laboriously through each trial bundle page by page by page in open court. This would generally be followed by the calling of the plaintiff's witnesses who would give their evidence orally in chief. This was not always an easy exercise given the prohibition of leading questions – and it occasionally produced moments of some amusement when the baffled witness was unable to produce the promised goods in response to rather oblique questions.

There was no requirement for either party to inform the other of the identity of the witnesses it intended to call still less the order in which the witnesses might be called – although a deal might often be struck (i.e. I will tell you mine if you tell me yours). This would be the first time that the other party (or the judge) would know what the witness had to say. Although stenographers would sometimes appear, there was no livenote so that all of this would generally be recorded by the judge in long-hand. Many judgments (even in the Commercial Court) would often be delivered ex tempore.

Most of the changes which have taken place (including, of course, the transfer of the Commercial Court, Chancery Division and TCC to the Rolls Building) have led to a more efficient system of civil justice which I – and I think most practitioners – would applaud. However, there are certain aspects of modern civil litigation which cause me real concern and, in some way or another, need to be addressed – although I accept that there are (sometimes) no easy answers.

First, at the risk of sounding like Victor Meldrew, I lament deeply the general disappearance of the art of pleading. The recent judgment of Leggatt J in Tchenguiz & Ors v Grant Thornton & Ors [2015] EWHC 405 is a tour de force which will, I hope, be read and re-read by any pleader (if I might still use that term) – and, who knows, will perhaps mark the beginning of a new trend.

Second, whilst I warmly welcome the abandonment of a purely literal approach to the construction of contracts, it is my strong view that this development needs to be managed carefully. It is all very well and good permitting reference to "absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man" (see per Lord Hoffmann in ICS v West Bromwich (1998) as explained in BCCI v Ali (2001)). However, at the same time, it has to be recognised that this approach potentially expands (often hugely) the scope of the evidence in any case, particularly since the distinction between what is and what is not admissible may not be straightforward: see, for example, the observations of Lord Clarke in Oceanbulk Shipping & Trading v TMT [2010] UKSC 44 in particular at [39] and my own judgment in The Falkonera [2012] EWHC 3678 (Comm). In order to address this issue, the Commercial Court Guide now contains a requirement in para C1.2(h) which merits close attention:

"(h) Where proceedings involve issues of construction of a document in relation to which a party wishes to contend that there is a relevant factual matrix that party should specifically set out in his pleading each feature of the matrix which is alleged to be of relevance. The "factual matrix" means the background knowledge which would reasonably have been available to the parties in the situation in which they found themselves at the time of the contract/document."

It is noteworthy that the Courts of Singapore have adopted a similar approach: see Sembcorp Marine v PPL Holdings [2013] SGCA 43 at [73].

Third, although I generally welcome the introduction of written witness statements with a signed statement of truth, it is worth recognising that it is, in my view at least, perhaps the most important change in litigation in the last (say) 50 years. Just think about it. The English legal system has always emphasised (rightly, in my view), the importance of oral evidence. In that context, the (old) rule that such evidence should be adduced orally in chief without the benefit of leading questions was a long-standing feature of our legal system.

The introduction of written witness statements was revolutionary, not merely because it provided a mechanism for permitting evidence to be adduced in a written form but also because the formulation of the written witness statement is (almost invariably) the result of an iterative drafting exercise between solicitor and witness involving not only leading questions but also leading answers by a third party in the sense that the words drafted are often those of the solicitor. For present purposes, I am prepared to assume that the solicitor is doing his (or her) best to convey what he (or she) honestly believes is what the witness would like to say. However, the result is that the court is often faced with a lengthy manicured statement which is in breach of the rules and contains not only a vast quantity of evidence dealing with matters which have little, if anything, to do with the issues in the case but also – and even worse – argument rather than evidence. This is not only impermissible but often counterproductive as the courts have repeatedly emphasised: see, for example, Kaupthing Singer & Friedlander Ltd (in administration) v. UBS AG [2014] EWHC 2450 (Comm).

What should the court do in such circumstances? One answer might be to exclude the witness statement in whole or in part and to require the witness to give oral evidence in chief in the old-fashioned way. That robust approach has obvious attraction but, in some cases at least, it will simply lead to additional delay and increased cost. This is a real and constant problem in modern litigation.

Fourth, I also warmly welcome "active case management" by the court in the preliminary stages of litigation and the lead-up to the trial; and I recognise that some of the issues referred to earlier are best addressed and dealt with by active case management. I strongly believe that active case management is the best way to reduce costs and, more generally, to ensure that the litigation is conducted efficiently. In my view, this is particularly important when considering issues concerning disclosure and expert evidence. However, active case management requires more judicial time – which is in short supply. Without the latter, active case management is no more than an idealised aspiration.

Fifth, I also lament (Victor Meldrew again) the decline of oral advocacy which has always been at the heart of our legal system. As stated by Longmore LJ in Meritz Fire & Marine & Ors v Jan de Nul NV & Ors [2011] EWCA] 82 at [31]: "In this country, unless the court otherwise orders, arguments are to be made orally in the face of the court where they can be tested; it is by disputation that the law is made known." In my view, oral advocacy is particularly important with regard to closing submissions. Whilst written closing submissions are obviously very helpful to the court, I firmly believe that they are not the be-all-and-end-all. This is so for two main reasons. First, written closings are generally far too long and diffuse. The explanation may be that they are often the result of a collaborative effort of a large team of solicitors and barristers, all of whom want to have their say. The effort is no doubt commendable but the product often ignores the golden rule that brevity is generally the advocate's most powerful weapon; and what the judge has to read may not be as helpful as might otherwise be the case. Second, the tendency is for each party to highlight their own "good points". The result is that when the judge comes to write his or her judgment, it is often difficult if not impossible to identify what the answer is to a particular point (if any). That is why it is, in my view, crucial for the judge to be given sufficient time both to read the written closing submissions critically and to test the parties' respective arguments in the course of an oral hearing.

Sixth, the level of costs remains a matter of very great concern, notwithstanding the Jackson reforms. Ted Baker v Axa [2014] EWHC 4178 (Comm) - where total costs (approaching £7 million) far exceeded the amount in dispute (by the start of the trial approximately £1 million) - is a good illustration of a case which, as I said in my judgment at paragraph [5], brings no credit to modern commercial litigation. There is a duty on all concerned – parties, legal representatives and the court – to ensure that costs are reasonable and proportionate; and, in my view, this will only be achieved if the court has sufficient resources to engage properly in active case management – and adopts a robust approach.

Despite these concerns, the many changes which have taken place over the past 40 years have been crucial in maintaining the worldwide reputation of our legal system – and, in particular, the success of the Commercial Court, Chancery Division and TCC. Looking ahead, the key aims must be the same as they have ever been – to deliver justice fairly, efficiently, within a reasonable time-frame and at a cost which is reasonable and proportionate; and so too must be the drive and flexibility to continue to make changes wherever necessary to achieve those aims.

Originally published in Funding In Focus, November 2015

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