I reported earlier today (Commercial Court judges set out their case management intentions) on the Commercial Court judges’ intention to limit the length of pleadings, witness statements etc as part of their firm commitment to cut the crap (they did not, I should add, put it like that, not in express terms anyway).
I owe to Mark Dingle at Simmons & Simmons a pointer to a case which is right on the point. It is not exactly current, dating as it does from 1595, and it involves a defendant called Weldon. It would not surprise anyone who practices in this area to find that Derby v Weldon had been running that long, but this case began even longer ago than that long-running saga, and the plaintiff was one Mylward. It may have been a different Weldon.
I have to say, I assumed at first that the report of Mylward v Weldon was a spoof, but I don’t think the excellent BAILII does spoofs. Richard Mylward did both draw, devise, and engross a replication which doth amount to six score sheets of paper, and yet all the matter thereof which is pertinent might have been well contrived in sixteen sheets of paper. A replication, as I am sure you all know, was a pleading made by a plaintiff in reply to the defendant’s plea or answer.It was decided that the offender might, for example sake, not only be punished, but also be fined to Her Majesty for that offence; and that the defendant might have his charges sustained thereby – that is have an order for the costs thrown away. The court’s reasoning was that such an abuse is not in any sort to be tolerated, proceeding of a malicious purpose to increase the defendant’s charge, and being fraught with much impertinent matter not fit for this Court – exactly the sort of thing the Commercial Court is keen to root out.
The sentence was that the Warden of the Fleet shall take the said Richard Mylward… into his custody, and shall … cut a hole in the myddest of the same engrossed replication …. and put the said Richard’s head through the same hole, and so let the same replication hang about his shoulders, with the written side outward. Mylward was then to be paraded round Westminster and imprisoned until he had paid his fine and 20 nobles as the costs thrown away.
Here is the answer, I think, not just to lengthy pleadings but to excessive disclosure and in particular to the problem of “stowaway hard copy documents” complained of by Mrs Justice Gloster. How about a rule that any hard copy documents not referred to (usefully) in the course of a hearing must be carried up and down the Strand personally by the senior barrister engaged on the case? Or eaten by the solicitor at a table on the steps of the RCJ?
But wait – I recall a case which was run electronically by both parties, from the beginning almost to the end. Not quite to the end though; it was the judge who required 157 bundles of paper to be available in court.
The case report on Mylward v Weldon can be found on the BAILII site at http://www.bailii.org/ew/cases/EWHC/Ch/1595/1.html