By the way | Pre-trials and tribulations

I had a fairly innocuous-looking diary entry one day last week, being a pre-trial review hearing to take place by telephone at a remote court which I shall not name. The trial is due to take place next month, but lay witness evidence had only just been exchanged and the case has generally been subject to a surprisingly rapid timetable.

I came into work on the morning of the hearing and immediately ensconced myself in a pre-booked meeting room, where I fully prepared away from the general hustle and bustle of an open plan office environment. My previous experience of this particular court is that its judges are formidable and tend not to suffer fools, aka legal representatives who are not sufficiently familiar with the facts of their case.

BT called a few minutes before kick-off and advised me that counsel for one of the other parties was already on the line. If I may pause there, I have never understood why, particularly when such a hearing is to take place by telephone, any solicitor considers it necessary to instruct a barrister to represent their client. The purpose of ?a pre-trial review is for the court to ensure that everything is ready for the case to be tried, as its name would suggest. It is therefore surely better for those with a day to day working knowledge of the facts to attend and try to assist the court's understanding, rather than to send ?barristers who are usually only instructed to deal with discrete issues at various stages as the case progresses.

In any event, the waiting barrister and I greeted each other and there then followed, as it is often the case with these telephone conferences, a long and uncomfortable silence before the final party's barrister was also joined to the line, quickly followed by the judge himself.

As I had anticipated, it was apparent from the outset that the judge was in no mood for muppetry, for want of a better or more amusing word. One of the barristers seemed to rush headlong into the firing line when he stated that his instructions were to request that the court vacate the trial and re-list it later in the year, to which the answer was a swift and concise "no". He was not discouraged however, and shortly later valiantly stuck his head above the parapet for a second time in requesting permission for all parties to file any further evidence just one week before the trial date, apparently since his instructing solicitors required more time to consider evidence from the other parties. On prompting, he added that his client may also try and obtain evidence from an additional witness, although he was not in a position to explain why that witness statement had not been prepared in time for exchange with all of the others. The judge asked him to elaborate, and counsel replied by apologising. The stinging response was that an explanation had been requested, not an apology.

The judge went on to say that the purpose of a pre-trial review is not to make a tactical game of springing surprises on one's opponents, but rather for the court to satisfy itself that a particular case is ready for trial. The exchange was painful enough to observe and I can only imagine how the barrister on the receiving end was feeling, unless he has rhino-thick skin.

A further lesson which I would advocate learning this month is to ensure that one is fully aware of all settlement offers which have been tabled on a case before attempting to conclude it. This again may seem rather obvious, but I experienced a bizarre settlement negotiation recently. The parties' respective positions, including an allowance for the claimant's costs, were stated to be just a few thousand pounds apart in a series of without prejudice letters.

The claimant's solicitors however went through a sudden change of tone, writing to state that unless we accepted their client's Part 36 offer (so with reasonable costs to be paid on top) proceedings would be issued within just seven days. The threat of proceedings was not in itself particularly alarming, as it had been made repeatedly during the previous 18 months or so, but on this occasion it was accompanied by draft particulars of claim which had been prepared by counsel, meaning that the claimant did appear to be starting to take the matter rather more seriously.

We therefore asked the claimant's solicitors to provide details of their costs on a without prejudice basis. They were in all fairness at a reasonable level, but they did now include the fees of the barrister for drafting the particulars of claim, and had therefore understandably increased somewhat since they had previously been estimated to us.

On reviewing the prior settlement correspondence between the parties, we noted that although the latest costs inclusive offer from the claimant had not been restated in recent times, it had never been superseded by a further offer from either side, nor had it been withdrawn. We therefore seized the opportunity to write and accept it, a move which I am not sure the claimant's solicitors saw coming, and which I estimate will have cost them over £6,000 in terms of a hit which they will probably have to take on their own costs in order to meet their client's expectations for the claim settlement itself. That will smart.

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