Acting reasonably throughout the litigation process
17th February, 2022
A High Court judge has strongly criticised parties' conduct in a recent case describing them as behaving like "Schoolchildren".
The case reminds litigants that no matter how bitter the litigation, the court expects certain behaviour and will penalise those who fall short of the standard required.
What happened?
In the recent costs hearing relating to Cryto Patent Alliance v Craig Steven Wright, HHJ Matthews said that the parties had behaved in “an ultra-aggressive and unco-operative way towards each other”. In criticising their conduct, the judge was clear that it is unacceptable for solicitors to “Become mere mouthpieces for their clients to vent their anger at their opponents”.
Particular criticisms were made of the parties’ approach to costs. HHJ Matthews said, “The bad-tempered way in which [the litigation] has been conducted led to extra work being done in order to counter what is perceived as the other side’s wrong-headed approach”.
He described the £127,000 for a one-day hearing claimed by the Claimant as “extraordinarily high”. Accordingly, various amounts were deducted from their overall award. £10,000 was deducted for lack of delegation to lawyers with a lower rate, £24,000 for excessive time as well as £20,000 for excessive attendance at the hearing.
The judge expressed concerns that pernicious behaviour is becoming increasingly common in the world of litigation and that such conduct has the effect of “diminishing overall justice, and thus gives English civil procedure a bad name.”
HHJ Matthews went onto say that some business people view litigation as a means to get leverage on their opponent as opposed to a means of resolving disputes. He said that this approach is regrettable and disadvantages other litigants who “play by the rules”.
What does this show?
This case demonstrates the importance of acting reasonably throughout the litigation process. Judges will not look kindly on those who further “bad tempered litigation” or use litigation as a means to aggressively further their commercial negotiating position.
The case shows that judges will penalise parties who fail to comply with the standard of litigation conduct they expect, regardless of whether they have won their substantive case or not.
If you find yourself in a situation where you need support in a litigation matter our team of commercial litigators may be able to help. Contact one of our specialists to find out more.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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