A High Court judge has attacked commercial lawyers for failing to engage properly with each other in the build-up to trial.

Mr Richard Salter QC, sitting as a deputy judge of the High Court, said in Ventra Investments Ltd v Bank Of Scotland plc that both parties needed to act promptly and warned the court was ‘unlikely to be sympathetic’ if instructions were not carried out.

The underlying case is a dispute over advice on property transactions, with a 20-day trial listed to begin next January. This hearing was to decide whether the court should vacate that listing and whether, for a variety of reasons, a fair trial was still possible.

Contained within a judgment running to 254 paragraphs, the judge restated a section of the Commercial Court Guide, which says the court ‘expects a high level of co-operation and realism’ from the legal representatives of the parties, who in this are represented by international firms Hausfeld and DLA Piper.
The applications dealt with at the hearing, and associated witness statements and exhibited correspondence, said the judge, ‘have unfortunately not demonstrated these vital characteristics’.

On the one hand Bank of Scotland had been inclined to adopt an ‘unreasonably narrow and self-serving approach to relevance’ in performing its disclosure obligations. On the other hand, the large number of Ventra’s applications refused as unnecessary or misconceived ‘demonstrate a lack of focus on the really important issues and on the most cost-effective and proportionate way of getting what is really necessary’.

The judge added: ‘The correspondence between Hausfeld and DLA Piper has seemed on occasions to be a dialogue of the deaf, neither side engaging properly with the logic of the other’s position. The result has been a considerable waste of the parties’ and the court’s resources. If proper regard had been had on both sides to the overriding objective, the application bundle for these interim applications would not have been 19 files long.’

He ruled that both sides must show a much higher level of co-operations and realism, and noted there was sufficient time before the trial date for additional disclosure and a re-amended particulars of claim to be drafted.

Both parties were encouraged to agree a timetable for completion of all stages necessary to get the case ready for trial.

The Law Society Gazette

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