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, [2011] 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…[1595] 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 [1992] 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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I had a career in civil litigation for over 30 years and my principals’ usual adversaries were solicitors acting for trade unions. One issued that irritated me was the scant way in which they took instruc tions from their union assisted client. On a couple of occasions the same junior counsel decided to attack me personally during the course of the trial.
On the first occasion the Judge cut him short by saying that the defendants had quite properly made two attempts in which to flush out what were the issues in this case and on both occasions you avoided giving the further particulars as ordered.
In the second case, I interviewed the union official who completed the claims form for union legal aid. Once again I was attacked in open court by the same counsel but the very experienced Mr. Justi C… intervened and said surely this docoument is the witness’ document and the fact that he is a trade union official is surely irrelevant. The content of this form demolished the plaintiff’s case but his counsel had this document in his papers fromt he word go. I was not embarrased abuot him literally dying on his feel with the redest of red faces that I have ever seen.
Not bad only 2 complaints in 30 plus years.
Now I will go to the other extreme, what we term as “bog legal aid solicitors and counsel” acting in cases where they would never ask a client to put up the cash on apart with fee paying clients. These types of lawyers are around today and are a major cause of costs exculating. Even the court’s power to award costs against this type of lawyer has not sufficiently dampened their involvement in litigation which is beyond their expertise, assuming they have an expertise.
I have been involved in other trial where the trial judge has given short change but this was during the course of the trial, not after all of the costs of the trial had been incurred.
Of course, the real problem is that if the lawyers do not raise every conceivable point they end up being sued for negligence.
Yes, for once the judges are absolutely right! I occasionally have to deal with legal submissions in Cyprus and the length and the multiplicity of irrelevant arguments set out in the “alternative” by lawyers is quite common and very hard work for anyone hoping to make any sense of their case. More often than not, even potentially good points get lost in the chaotic presentation of the case and I suspect the tactic is used as a cover up in the hope that both clients and judges will mistake quantity for quality. The cartoon above reflects fully my feelings ofhow these advocates should be … rewarded for their efforts
When I defended my Ph.D., one of my nicer examiners told me he always weighed the evidence – literally on a pan balance, – so he could assess how much effort had been put into it! Don’t know if a similar system operates behind the screens in the Strand, but the scales of Justice appear very much tipped against the litigant in person who puts absolutely everything into (e.g.) a JRA, for fear of being accused of failing to submit all the evidence, and just ends up irritating a Judge.