Should lawyers get named and shamed for being boring?
5 December 2011
Mortgage Agency Services Number Four Limited v. Alomo Solicitors, HHJ Simon Brown QC,  EWHC B22 (Mercantile)
Every so often, a judge gets so infuriated with the prolixity of an advocate that he has a real go at him in the resulting judgment, and this solicitors negligence case is a good example. However, this judge spiced up his reasoning with a tale of how long-winded advocates were treated in the past when their legal documents went on too long:
“One early remedy that had an effect was used by the Lord Keeper in England in 1596 in the case of Mylward v Weldon… EWHC Ch 1]. He ordered that a pleading 120 pages long be removed from the file because it was about eight times longer than it need have been. He ordered that the pleader be taken to the Fleet prison. His Lordship then ordered that on the next Saturday the Warden of the Fleet bring the pleader into Westminster Hall at 10 a.m. and then and there cut a hole in the midst of the pleading and place it over the pleader’s head so that it would hang over his shoulders with the written side outwards. The Warden had to lead the pleader around Westminster Hall while the three courts were sitting and display him “bare headed and bare faced” and then be returned to the Fleet prison until he had paid a £10 fine – a huge sum in those days.”
Many non-lawyers facing such prolixity (and paying for it) will think that a good deal of this sort of embarrassment might not go amiss these days. And the actual decision by HHJ Simon Brown QC shows how much all this unnecessary complexity costs. The judge made an indemnity costs order against the solicitor defendants in this case. The claimants’ costs had originally been estimated at £120,000, which was later upped to £175,000. Why?
because of the amount of work the Claimant said they were having to do to deal with the blizzard of issues raised by the Defendant. I have no doubt that is the case as they were having to deal with all sorts of spurious defences, or ideas, or irrelevant purported facts, put forward by the Defendants in the conduct of these proceedings. There was no attempt to narrow the issues by the Defendant, quite the reverse, and in the end I have enquired of counsel for the Claimants what the costs bill will be probably be when it goes to detailed assessment. I am told that the budget figure of £174,000 will be exceeded and that the bill is likely to be more in the region of £200,000+. That is an enormous sum of money to spend on having to proceed with a claim for what was quite a straightforward solicitor’s mortgage fraud case; quite disproportionate and off putting for any Claimant requiring access to justice.
Hardly surprising that indemnity costs were ordered.
The current CPR regime seeks to encourage concise legal documents. But the search for this is not a recent one. In the 1990s, Lord Templeman put it well: lawyers are “under a duty to co-operate with the court by chronological, brief and consistent pleadings which define the issues and leave the judge to draw his own conclusions about the merits when he hears the case … and to assist the judge by simplification and concentration and not to advance a multitude of ingenious arguments in the hope that out of 10 bad points the judge will be capable of fashioning a winner” Ashmore v. Corporation of Lloyds  1 W.L.R. 446.
But in these days, perhaps parading a lawyer around with his documents draped over his head is unnecessary. After all, a click or two onto BAILII will get us all versed in whatever it is said that the advocate did or did not do. And this openness can only deter the prolixity in the first place.
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