His Honour Judge Paul Matthews caused a stir recently by ticking off the parties in a costs judgment for “behaving in an ultra-aggressive and uncooperative way towards each other” which was “not conducive to the efficient conduct of the litigation.”
It’s rare for a judge to make such comments, writes David Little, a Partner in our Corporate and Commercial department.
The case involved Crypto Open Patent Alliance (COPA), in a dispute against Dr Craig Wright, a computer scientist who claims he was the creator of Bitcoin.
Following a preliminary hearing the judge ruled the COPA was the “overall” successful party but said it was “highly undesirable” for parties to argue over costs “as if they were the main issue”. This “modern kind of satellite litigation is pernicious,” said the judge, and has the, “effect of diminishing overall justice, and thus gives English civil procedure a bad name.
“The problem is that this case is an example of what I would (unhappily) call bad-tempered litigation, which is regrettably becoming more and more prevalent in the English courts. It somehow seems to have become acceptable for solicitors to become mere mouthpieces for their clients to vent their anger at their opponents. It is not enough for the clients to dislike or even hate each other: the solicitors must do so too. I simply do not understand why in 2022 professional, trained lawyers, who should know how to stand up to their clients, and concentrate instead on what is important in the litigation, think it is appropriate to behave like schoolchildren in the playground.
“I am sorry to be old-fashioned, but, when I started in practice, this kind of thing just did not happen. The losing party accepted liability for the costs, and the receiving party only rarely argued for indemnity costs. (Summary assessment had not then been introduced.) Nowadays, it seems, losing parties nearly always argue that they should not pay the costs at all (I do not know when was the last time I heard counsel use the phrase “I cannot resist that”), and winning parties nearly always argue that costs should be on the indemnity basis.
“This modern kind of satellite litigation is pernicious. In my view it has the effect of diminishing overall justice, and thus gives English civil procedure a bad name. Costs decisions (other than detailed assessment of the actual amounts involved) are supposed to reflect the broad justice of the case. They are therefore intended to be merely the tail to the dog, and not the dog itself.”
The full judgment can be viewed here.
David Little is a Partner at Bishop & Sewell in our expert Corporate & Commercial team. If you would like to contact him, please quote Ref CB283 on either 020 7631 4141 or email email@example.com.
The above is accurate as at 18 February 2022. The information above may be subject to change during these ever-changing times.
The content of this note should not be considered legal advice and each matter should be considered on a case-by-case basis.