High Court warns uncooperative parties against “litigation warfare”

Fraser: The parties must engage constructively

A High Court judge has warned against “litigation warfare” as he pleaded with the parties in a construction dispute to co-operate in the face of spiralling costs.

Mr Justice Fraser stressed that co-operation by parties was “expressly required by the CPR” and there was “nothing to be gained by endless interlocutory strife”.

The only consequence of this was “vast expense and difficulty”.

He made the remarks in Standard Life Assurance Ltd v Gleeds (UK) (a firm) & Ors [2021] EWHC 2081 (TCC), a ruling on an application by the claimant for permission to amend its particulars of claim in what he described as a “factually complex” case about the design and construction of a mixed-use retail and residential development in Newbury, Berkshire. There are six defendants.

“In a case of this type and scale, it is possible for different parties to attempt to engage in litigation warfare,” Fraser J.

“This is particularly so if groups of defendants decide to act in concert with one another. With pleadings of this nature, there is often the temptation to attempt to inflict ‘death by schedule’ upon the others involved. All these temptations must be resisted.”

There are three elements to the claim – known as parts A, B and C – and the judge pointed out that a year had passed since the part B defendants issued a strike-out applications.

“The parties have had two substantial hearings and this is the second reserved judgment, yet the claimant has not even finalised its particulars of claim.

“Goodness knows how many millions have been expended in costs during that year. The summary cost schedules just for the part B defendants just for this application alone were over £130,000. This is not how modern specialist litigation should be conducted.”

Fraser J said specialist list judges have considerable experience in case management, especially of legally and factually complex cases.

“However, such experience can only take matters so far. The parties to this case must engage constructively. Such co-operation seems, to date, to have been lacking.

“Failure to comply with existing orders of the court must end. Deadlines must be kept. Unless this is done, legal costs will dramatically escalate on all sides, and parties also run the risk that their own costs, associated with large areas of the case, may simply be disallowed.”

Also in civil litigation this week, the Civil Procedure Rule Committee is to extend the disclosure pilot to 31 December 2022 after agreeing further changes to how it operates from 1 October.

Most significantly, there will be a separate regime for “less complex” claims. Cases can meet that definition in various ways but will be presumed to fall within it if they are valued at no more than £500,000, unless another factor makes it more complex.

Extended disclosure will be given using only models A, B or D for less complex claims, and there will be a simplified version of the disclosure review document.

Other changes include express recognition that disclosure in multi-party claims is likely to need a bespoke approach from the court, and making the process of agreeing lists of issues simpler and less contentious and discouraging excess when model C is used.

Though the changes remain in draft, the committee invited users “to consider their purpose and effect and, where appropriate, may (by agreement) propose to the court that any of these changes be applied to their existing case”.

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