Disclosure judgments fall into a limited range of categories. Sometimes new-ish rules are not as clear as they might be or are challenged by a set of circumstances not foreseen by the drafters. Sometimes the conduct of one party (occasionally both) falls short of that expected by the court – their demands are disproportionate, or fall the wrong side of the balancing exercise in Denton. Judges are often unimpressed with point-taking, but it can be hard to decide whether duty requires a point to be taken. Sometimes the problem is caused by simple ignorance of the rules or about the mechanics of proper disclosure.
It is rare to find a judgment whose facts show inexcusable conduct by solicitors – not ignorant, not merely sloppy, not sailing close to the wind, but patently giving advice which defies the rules which bind both them and their clients. The report reached me via Gordon Exall (as usual) in a post here which links to an account by Kennedys of a story which defies belief. I don’t say this from some innate belief in the virtue of solicitors (there are 157,000 of them) nor because the Civil Procedure Rules are sacrosanct, nor even because disclosure depends more than anything else on good behaviour. My disbelief stems from the solicitors following a course which was pretty well bound to be discovered.
The claim was against a holiday company for alleged illness on a holiday. As with all such claims, holiday companies and their insurers and lawyers develop a sense for the suspicious, in this case (it seems) triggered by the fact that the holiday-makers made two complaints on their return, but omitted the allegedly serious health claim until later. The claim was defended expressly by reference to the claimants’ holiday pictures on social media.
The claimants discontinued their claim, and the rest of the story involves the defendant’s claims for costs. What began as a claim that the claimants’ solicitors should have conducted proper searches of social media before advancing the claim became further investigations which showed (put briefly) that the solicitors had in fact searched and found the relevant posts – and excluded them from the disclosure list.
The story is succinctly told in the Kennedys post and I will not repeat the details here. The upshot was an indemnity costs order against the solicitors for £37,000. If the story ends there, they will have got off lightly.
There is a helpful summary at the end of the post about claims which are fundamentally dishonest anyway but where this has been “facilitated by improper, unreasonable and/or negligent conduct of the claimant’s own legal representatives”. Kennedys wonder if we might see more such claims. Being “unreasonable and/or negligent” is one thing. Behaving improperly in the manner described in the article is quite another.
I dislike this as a step towards the habits in at least two other jurisdictions I can think of for whom discovery is a frenzy of mutual suspicion, and where demands and recriminations between lawyers can get personal. We have managed to elevate proportionality over this, but that depends on an element of trust between lawyers. Solicitors who behave in a way which is obviously improper will erode that trust.