A new case highlights how parties involved in litigation need to behave reasonably – or face the consequences! Mark Edmonds explains more. The nature of litigation and the procedural rules that govern it, mean that timetables and deadlines are crucial for the efficient determination of cases. Tactical approaches when defending claims vary greatly and range from early settlement and counterclaims to more disguised approaches such as delaying hearing dates and the directions of the court. Such approaches to litigation are often regarded by the courts as being reprehensible and at odds with the current “overriding objective”. The “overriding objective” is defined in Part 1.1 of the Civil Procedure Rules 1998 (“the CPR”) as a way for the court to deal with cases justly and fairly. The CPR makes it clear that parties are required to help the court to further this “overriding objective”. It is therefore clear that parties should do everything in their power to conduct litigation in a just and fair manner. If it is determined by a Judge that the conduct of a particular party is such that it has not conducted itself in such a manner, there should be consequences for not doing so. Judges presiding over cases retain a discretionary power when it comes to case management and costs. It is likely that if a Judge determines conduct as going against the overriding objective he/she will sanction a costs penalty or grant some form of adverse order against the party judged to have acted unreasonably. In most cases of reprehensible conduct he will order that costs be paid on the indemnity basis (which means essentially that the losing party should account for all costs) or an “unless order” will be made, which requires a party to do something or risk being able to pursue the prosecution or defence of the claim. This has been highlighted recently by Mr Justice Akenhead in the case of Phaestos Ltd and another v Ho [2012] EWHC 635. The Claimant wished to make three applications. It wanted to split the trial, wanted extra time to file its Particulars of Claim and to delay the onset of the electronic disclosure process. The Judge made it clear that the fact that the Claimant wanted to change solicitors and that providing Particulars was difficult were not good reasons to extend time. Deferral would seriously upset the management of the trial process. The judge maintained this approach when refusing the Claimant’s application to adjourn e-disclosure issues, notwithstanding that new solicitors had only just been instructed and its QC was on holiday. The Claimant had put its solicitors and barrister in an impossible position. Having considered all three applications, the Judge concluded that the Claimant was trying to disrupt and delay the court timetable and this was therefore a case for punitive, indemnity costs. The lesson? It is clear that if a party to litigation wishes to try and disrupt the directions laid down by the court for the efficient management of a case they do so at the risk of potential costs consequences when their application(s) have been determined.

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