Disclosure in large English litigation: cultural microcosm

As an illustration of cultural challenges in relation to my recent posts on reform of disclosure in large English litigation, a 10 November 2017 procedural judgment of Mr Justice Fraser is noteworthy.

Both sides in the litigation were represented by well-known law firms.

  • One firm declares it has "more than 311 solicitors and trial and appellate lawyers... tackl[ing] our clients' most significant and complex cases, including those that threaten their very existence...our lawyers’ experience makes them formidable at every stage of a dispute and through every level of the courts."
  • The other has "165 Partners & Directors and over 800 members of staff" and offers "real professionalism from us as we do all we can to achieve your desired outcomes."

Features of the litigation - 

"This is a large and complicated case. Quite apart from the fact that there are, as at the date of this ruling, over 500 claimants, the technical subject matter... is likely to be complex, and permission has already been granted for expert evidence in this field.... There is a yawning gulf between the parties as to liability. Resolving the many issues... is likely to take some time... a substantive hearing [has been] ordered for 5 November 2018 for 20 days to deal with 23 different common issues."

Nevertheless, the parties ignored the disclosure questionnaires, and a lot more besides (emphasis added).

"[L]itigation of any type, but particularly of this type, can only be conducted in a cost-effective and efficient way if the parties co-operate between themselves, are constructive, and conduct the case efficiently. The parties have a duty to help the court...
The following have all occurred so far...: failing to respond to proposed directions for two months; failing even to consider e-disclosure questionnaires; failing to lodge required documents with the court; failing to lodge documents in good time; refusing to disclose obviously relevant documents; resisting any extension to the "cut-off" date for entries of new claimants on the Group Register; and threatening pointless interlocutory skirmishes. On the material before me, this has been more or less equally on both sides. Such behaviour simply does not begin to qualify as either cost-effective, efficient, or being in accordance with the over-riding objective. A fundamental change of attitude by the legal advisers involved in this group litigation is required. A failure to heed this warning will result in draconian costs orders."

Clearly a bad case. But still, the fact that this can happen at all, some 18 years after the Woolf reforms came into force, is illustrative of the challenges.

Bates and others v Post Office [2017] EWHC 2844 (QB)


Graeme Johnston