Matthews: Highly regrettable approach to the case
A judge has heavily criticised the “aggressive” approach of a defendant and its lawyers, saying the case was “like going back in time to when I first started in practice in the 1980s”.
His Honour Judge Paul Matthews, sitting as a High Court judge in Bristol, blamed the solicitors, Knights, for its client destroying records after the dispute arose.
He ordered the defendant, Vixen Surface Treatments Ltd, to pay costs on the indemnity basis in light of its conduct of the claim.
The case brought by Car-Wizard Ltd, advised by Wards Solicitors, concerned Vixen’s defective supply of a vertical diamond cutting lathe for its car wheel repair business.
The judge found in favour of Car-Wizard and awarded damages of £86,140.
HHJ Mattews started his ruling on costs by recording regret that “at every stage in this litigation which I have overseen, there has been little meeting of minds, and far less co-operation than I am used to, and expect, between the parties, even though both sides are represented by experienced solicitors and counsel”.
He went on: “The result has been a longer drawn-out, far more aggressive and certainly more expensive lawyer-led dispute resolution process than I have experienced for a long time. It has been like going back in time to when I first started in practice in the 1980s.
“This is highly regrettable, particularly in these days when judicial resources are scarce, and the emphasis must be on the efficient resolution of disputes.”
The main responsibility for the lack of co-operation lay with the defendant and its legal team, he went on.
“Every possible point has been taken in the defence of this claim, very many of them either bad or irrelevant.”
It took nearly two years from issue to reach trial. “This is unusually slow. In my judgment this was largely due to the defendant’s aggressive approach.”
The trial also highlighted two issues of particular concern, the judge said.
First, cross-examination revealed that the defendant destroyed many of its “relevant records” after the dispute arose – though it was not mentioned in the disclosure reports.
“The defendants’ lawyers must bear the main responsibility for that,” said HHJ Matthews.
Second, “cross-examination also elicited the fact that the defendant’s engineering expert had revised his opinion after someone in the defendant’s legal team had suggested to him that in light of what happened at trial he reconsider his report.
“Frankly, this is not the kind of conduct which I expect in conducting litigation in 2026 under the CPR.”
In his liability ruling in March, the judge said: “I take the gravest view of any interference with the opinion of an expert who owes his loyalty to the court, above that to the client who instructs him.”
HHJ Matthews awarded the claimant 90% of its costs. The claimant beat its part 36 offer and he said there was no reason not to award the usual consequences of doing so.
As for the period before the offer, he awarded costs on the indemnity basis. This was because the defendant defended the allegation that, contrary to representations made, the lathe was not new and that the defendant must have known that.
The judge found the allegation proved, noting how “the evidence that one might have expected to be available from the defendant was entirely lacking, in part at least because of destruction of documents by the defendant”.
It was the same with another allegation that the lathe could not cut tapered edges, and the judge cited the issue with the expert evidence as the third reason to hold that the defendant’s conduct was sufficiently out of the norm so as to justify indemnity costs.
Barrister Jay Jagasia represented the claimant and Simon Goldberg KC the defendant.
Leave a Comment