Judging the importance of form over function

The parties are gathered for a Case Management Conference. It has been the diary for some time, and no-one is in any doubt as to the time, date, place or nature of the business to be discussed. The summons is passed across to the judge. There is a purely technical defect on its face. Go away, says the judge, and come back when you are properly ready to present the application to the court.

Did you hear my scream when I was told that story last night? Perhaps I managed to suppress it, biting my knuckles to prevent it echoing round Aldgate.

I will not tell you who it was or what level of judge he was since it is the attitude which I am attacking not the person. I have not looked up whether the point at issue is in fact a requirement nor what the penalty is – let us assume that it is required and that a spell in the Tower is the usual punishment, so that the parties were lucky to be sent away with nothing but a wasted morning, a few thousand pounds in lost costs and a delay in getting the case moving. What does this do for the overriding objective?

There is an old Times cartoon showing a Queen’s Bench Master dismissing an action with costs. He has never seen such outrageous conduct, he says. The Rules of the Supreme Court are not there to be flouted in this disgraceful manner. The offence which has so upset him is an affidavit bound in red tape not green. I use this partly to reminisce about the QB Masters of my youth, and partly to suggest that, whilst there are better things to be struck out for than non-compliance with simple requirements, judges are more pragmatic and business-like about such things these days. Then I hear a story like this.

I am all for the majesty of the court and all that, and think it no bad thing that parties should approach an application with sufficient respect to get things as right as they can – they owe it to their clients, quite apart from any inherent duty owed by their profession to the court. On the other hand, the court is a service for which we now pay hefty sums in fees, and judges have express duties to reduce costs and timescales.

Many pre-trial quarrels, not least about the scope of disclosure, can most easily be resolved by an application to the court on whatever is the point at issue and however narrow. Sure, court time is rationed and it is no small expense to issue, prepare for and attend an application. I am not suggesting that every niggle about case management warrants this.

What, though is the alternative? Often it is massive amounts of time, paper and costs spent jockeying for position on points which, perhaps individually small, add up to something significant, in expensive verbiage if not in real importance. The outcome was ably parodied by a barrister at a meeting of the Commercial Litigators’ Association in February. He referred to weighty bundles of inter-solicitor correspondence containing letters saying things like “We refer to paragraph 16b of your letter of 18 February in reply to point 47c of our letter of 12 February” and hoped that the Commercial Court (the context was the launch of the Commercial Court Long Trials Recommendations) would be able to cut through this sort of thing.

A good case management judge will do just that. They see more of it than anyone else does and can develop a good eye – better, often, than that of the parties before them – for cutting through the crap to what really matters – matters, that is, to the clients and to the shortest route to justice. The Commercial Court Recommendations themselves recognised that lawyers charged with running a case can sometimes lose sight of the real objective, which is why one of the recommendations was for more client involvement. Last Friday, I heard US Magistrate Judge John Facciola talking in Washington on a similar theme – he said he sometimes longed to ring up clients and urge them to go out to a parking lot and just burn the money instead of paying lawyers to fight about trivia. He also lamented the reluctance of lawyers to invite him to use his skills as a mediator in the informal sense of trying to steer parties towards a sensible conclusion other than by proceeding with the procedures.

What we appear to have in this story, however, is the opposite – lawyers ready and able to do what the rules require to move a case along obstructed by a judge who is more concerned with form than function.

In consumerist America there is a stronger tradition than there is here for rating judges – you can find web sites on which attorneys report on their experience before judges, good or bad. Much of this is about case management and is aimed not so much at driving choice – you cannot choose your judge there any more than you can here – but at guiding others as to what to expect. Much of it, no doubt, is unfair or derived from a single personal experience which, for all we know, stems as much from the faults of the writer as of the judge. It is an interesting idea, though.

What you can often do here is choose your venue within limits based on subject-matter, value and, to some extent, geography. There is nothing to stop parties agreeing to fight in a particular court where the judges are known to have a constructive and robust attitude to getting to the point. Birmingham Civil Justice Centre is one such place – my original introduction to HHJ Simon Brown QC, a Designated Mercantile Judge at Birmingham, was based on our shared interest in efficient case management, mine narrowly on disclosure, his more widely-based. It was an eye-opener for me to learn of a judge keen to make his court a place in which people would choose to litigate. The Mercantile Courts seem rather good at this.

I am far from urging a ratings scheme for judges, nor am I the PR agency for the Mercantile Courts. What I am extremely keen on is that lawyers should feel encouraged to take to a judge those aspects of a case for which the quick surgery of an informed decision is better than the drawn-out sickness of case management disputes in which costs spiral to no effect bearing on justice. I do not mean that every petty argument should result in a summons, nor do I want every court to be flooded out with half-baked, badly-prepared applications used as a negotiating weapon. Many such arguments, however, cry out for a quick use of Solomon’s judgement.

The rules matter, even those about the colour of binding tape and the precise form of summonses. The overriding objective matters rather more, however, not least because, as its name implies, it overrides everything else. Every judge who stands needlessly on some petty point of form drives away parties who might otherwise use the court for its primary purpose – resolving disputes quickly and cost-effectively.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Case Management, Commercial Court, Court Rules, Courts, CPR, eDiscovery, Electronic disclosure, Litigation. Bookmark the permalink.

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