High Court judge criticises litigators’ unwillingness to co-operate

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Bright: Just an ounce of common sense needed

A High Court judge has criticised “the instinct of litigators to object to anything proposed by the other side” when it would be better just to say ‘yes’.

Mr Justice Bright also bemoaned the “forensic gamesmanship with a view to thwarting each other’s ambitions” in opposing applications over whether England or Singapore should have jurisdiction to deal with a dispute over ship finance arrangements.

“On the face of things, therefore, the parties’ competing applications seem calculated to set up a rivalry between this court and the courts in Singapore,” he said.

But the judge pointed out how “I and my colleagues on the English bench hold our brethren in Singapore, and their judgments, in extremely high regard”, due to both the “excellent (and entirely deserved) reputation that the courts of Singapore enjoy” and the similarities between the two legal systems.

Bright J said he asked leading counsel for each side why one wanted to litigate only in England and the other only in Singapore, but received “answers that I regard as unsatisfactory and unconvincing”.

He went on: “Given an ounce of common sense and a sprinkling of willingness to co-operate, objective logic suggests that it ought to have been straightforward for the parties to agree to litigate either in one place or in the other, and then find a way to make that happen.

“The fact that they have failed to do so, and instead have both (albeit perhaps to different degrees) engaged in forensic gamesmanship with a view to thwarting each other’s ambitions, reflects badly on both.

“Sometimes, the instinct of litigators to object to anything proposed by the other side can obscure the fact that it is very often easier, quicker and cheaper – in short, better – just to say ‘yes’.”

Bright J concluded that the borrowers could pursue their claims in England, while the lender could bring parallel claims in Singapore.

“It may well be objectively sensible for one of them to yield to the other’s preference and agree to stay its own claims – either in England or in Singapore.

“However, common sense is not something the court can or should force upon either of them. They will have to find their own path to pragmatism.”

Jawdat Khurshid KC and Anna Hoffmann, instructed by Reed Smith, act for the claimants, with David Lewis KC, Joshua Folkard, instructed by Stephenson Harwood, for the defendant.