Expedition in the Commercial Court

There are words which have a meaning in the law which is different, and usually more prosaic, than their ordinary meaning. Expedition is one such word. An order granting expedition of a trial is of course nothing more than an order that it should take place sooner than it would if it were listed to come on for trial in the ordinary way.

The Commercial Court Guide[1] provides that the Commercial Court is able to provide an expedited trial in cases of sufficient urgency and importance,[2] and that a party seeking an expedited trial should apply to the Judge in Charge of the Commercial Court on notice to all parties at the earliest possible opportunity.[3] The application should normally be made after issue and service of the claim form but before service of particulars of claim.[4]

No further guidance is given. A summary of the relevant principles in a judgment of the Commercial Court is therefore welcome. In Apache Beryl I Ltd v Marathon Oil UK LCC[5], Males J heard an application in mid-August 2017 for an expedited trial to take place at the beginning of the next term, which was then in two months’ time or less, with a view to judgment being given, or at least a decision being given if possible, before 21 October 2017. The claimant’s position was that without a decision by 21 October 2017 as to its rights and obligations under an agreement with the defendant, it was likely to lose the benefit of a put and call option in which that was the longstop date.

Males J said that it was agreed between the parties that the decision whether to order expedition was discretionary, and that there were four factors to be taken into account:[6]

  • A threshold question of whether objectively there was urgency
  • The state of the Commercial Court list
  • The procedural history including delay by the applicant
  • Whether there would be any irremediable prejudice to the respondent

Of these, he said, the fourth factor – which might also be referred to as the good administration of justice or whether a fair trial was possible – was the most important.[7] Males J referred to the decision of the Court of Appeal in W L Gore & Associates GmbH v Geox SpA[8] for the principle that the Commercial Court seeks to assist commercial people in resolving their disputes, but does so in a way which is consistent with the interests of others and with justice and fairness, so that a critical matter in deciding to order expedition is whether a fair trial is possible.[9] If a fair trial is not possible, it necessarily follows that an unfair trial should not be ordered. On the other hand, if a fair trial is possible and there is a prospect that the court can accommodate it, the approach set out in Gore v Geox would strongly encourage the court to do so.[10]

Males J decided that a fair trial was possible and ordered an expedited trial starting on 16 October 2017, ie two months later. His assessment of the four factors inevitably depended on the facts of the case, but certain of his observations have wider relevance:

(1) The judge was willing to approach the application on the basis that it might but would not necessarily be necessary to stand out from the list another case which had been fixed for a considerable time. He recognised that if one of those trials was to be vacated, this would be at considerable expense to the parties in whatever case was selected, and that would no doubt leave them with a real and justified sense of having been unfairly treated.[11]

(2) The claimant had known about the longstop date of 21 October 2017 since December 2016, but sought expedition only in August 2017. Proceedings were started in mid-May but expedition was not sought at that stage as it could have been and should have been in accordance with the Commercial Court Guide. To some extent, the judge found, this was a deliberate, tactical decision by the claimant not to apply for expedition, although he also accepted that there was a hope that matters could be resolved by agreement and that it was only after a lengthy meeting on 31 July 2017 that it became apparent that this hope was to be disappointed.[12] The procedural history was therefore a factor against expedition, but not a decisive factor; it would be ‘disproportionately penal’ to refuse the application on this ground if it was otherwise appropriate to order expedition.[13]

(3) Particulars of Claim, a Defence and a Reply had been served together with various requests for information, and the defendants proposed to serve a Rejoinder. The judge said that the pleadings tended to make the dispute appear more complex than it really was, and that what was needed was a succinct and clear statement of each party’s position on the key issues.[14]

(4) Disclosure had not taken place, and the judge observed that this was case in which disclosure was likely to be limited – possibly to documents which each party relied on with scope for specific requests where necessary and possibly some disclosure on one particular issue which he identified.[15] There would be some factual and expert witness evidence, but this was likely to be limited.[16

(5) Urgent directions needed to be given, and the judge said that he would hold a case management conference the following day.[17]

  1. Admiralty and Commercial Courts Guide (10th Edition, last updated September 2017).
  2. Para J1.1.
  3. Para J1.2.
  4. Para J1.2.
  5. [2017] EWHC 2258 (Comm).
  6. Para 11.
  7. See paras 11-12 and 23.
  8. [2008] EWCA Civ 622.
  9. See paras 12-13.
  10. Para 23.
  11. Paras 19-20.
  12. Para 21.
  13. Para 22.
  14. Paras 26-27.
  15. Para 28.
  16. Para 28.
  17. Para 31.

Be prepared? – the perils of witness training

In two recent cases, one in the Commercial Court and one in the Technology and Construction Court, judges have deprecated the use of witness preparation even where the training falls short of witness coaching.

Witness coaching is prohibited by the Bar Code of Conduct[1], which states that ‘Your duty to act with honesty and integrity under CD3 includes the following requirements… you must not rehearse, practise with or coach a witness in respect of their evidence[2]. CD3, one of the Core Duties imposed on barristers by the Code of Conduct, is that: ‘You must act with honesty and integrity’.

Coaching’ is not defined in the Code of Conduct, but the Bar Council practice note on Witness Preparation[3] says:

In any discussions with witnesses regarding the process of giving evidence, great care must be taken not to do or say anything which could be interpreted as suggesting what the witness should say, or how he or she should express himself or herself in the witness box: that would be coaching.[4]

This Bar Council practice note draws heavily on the 2005 decision of the Court of Appeal in R v Momodou[5] and states[6] that there is currently no authority on these matters in relation to civil proceedings, and that until such authority emerges, it would be prudent to proceed on the basis that the general principles set out in R v Momodou also apply to civil proceedings.

In R v Momodou, the Court of Appeal made clear that discussion with a witness of his or her proposed or intended evidence in a criminal case was not permitted:

Training or coaching for witnesses in criminal proceedings (whether for prosecution or defence) is not permitted. This is the logical consequence of [the] well-known principle that discussions between witnesses should not take place, and that the statements and proofs of one witness should not be disclosed to any other witness. … The witness should give his or her own evidence, so far as practicable uninfluenced by what anyone else has said, whether in formal discussions or informal conversations. The rule reduces, indeed hopefully avoids any possibility, that one witness may tailor his evidence in the light of what anyone else said, and equally, avoids any unfounded perception that he may have done so. These risks are inherent in witness training.[7]

The Court of Appeal said that there was a ‘dramatic distinction’ between witness training or coaching, and witness familiarisation.[8] Witness familiarisation is:

pre-trial arrangements to familiarise witness with the layout of the court, the likely sequence of events when the witness is giving evidence, and a balanced appraisal of the different responsibilities of the various participants’,[9]

and the Court of Appeal added that such arrangements would usually be in the form of a pre-trial visit to the court, and were generally to be welcomed, but that out of court familiarisation techniques were also permissible. It emphasised, however that ‘None of this … involves discussions about proposed or intended evidence’.[10]

The Court of Appeal also addressed specifically the position of expert witnesses, saying that training of such witnesses in ‘the technique of giving comprehensive evidence of a specialist kind to a jury, both during evidence-in-chief and in cross-examination, and, another example, developing the ability to resist the inevitable pressure of going further in evidence than matters covered by the witnesses’ specific expertise’. As with witnesses of fact, ‘The critical feature of training of this kind is that it should not be arranged in the context of nor related to any forthcoming trial, and it can therefore have no impact whatever on it.’[11]

Guidance in the Bar Code of Conduct in a related but different context (the duty not to mislead the court) refers to the preparation of witness statements, and states that:

you are entitled and it may often be appropriate to draw to the witness’s attention other evidence which appears to conflict with what the witness is saying and you are entitled to indicate that a court may find a particular piece of evidence difficult to accept. But if the witness maintains that the evidence is true, it should be recorded in the witness statement and you will not be misleading the court if you call the witness to confirm their witness statement.’[12]

The reference to witness statements makes clear that this guidance relates to civil rather than criminal proceedings. It is not addressed in the Bar Council practice note, which as we have seen indicates that, in the absence of authority, it would be prudent to proceed on the basis that the general principles set out in R v Momodou also apply to civil proceedings. There is therefore an inconsistency between the Code of Conduct guidance and the clear statement in R v Momidou that ‘the statements and proofs of one witness should not be disclosed to any other witness’. This inconsistency is not explicable by the difference in procedure, as witness statements in civil proceedings simply take the place of oral evidence in chief: the process of taking the statement is merely the mechanism by which the evidence is put before the court, and there is no difference of principle. The extent to which the practice referred to in the Code of Conduct guidance will be regarded by the civil courts as permissible has yet to be determined, but there is no doubt that, given the clear statement in the guidance, it is acceptable from a regulatory perspective as far as barristers are concerned.

This is the legal and regulatory background against which judges in two recent commercial cases have deprecated the use of witness preparation even where such training falls short of witness coaching. Flaux J said in the Commercial Court in Republic of Djibouti v Boreh:[13]

The second reason for approaching the evidence of the Djibouti witnesses with considerable caution is that it was quite obvious that they had had witness training and been carefully prepared for giving evidence. Mr Douale admitted as much.[14]

And:

Whilst I am not suggesting that witness training in itself is improper, (provided that it does not amount to coaching of a witness as to what to say, which would be improper) it is to be discouraged, since, as this case demonstrates, it tends to reflect badly on the witness who, perhaps through no fault of his or her own, may appear evasive because he or she has been “trained” to give evidence in a particular way.’[15]

Last month, in Harlequin Property (SVG) Ltd v Wilkins Kennedy[16] in the Technology and Construction Court, Coulson J referred to Flaux J’s remarks with approval:

I was unsurprised to learn that Mr MacDonald had had witness training. For the same reasons outlined by Flaux J (as he then was) in Republic of Djibouti v Boreh … I consider it to be a practice “to be discouraged since…it tends to reflect badly on the witnesses who…may appear evasive.” In my view, the training he received exacerbated Mr MacDonald’s natural tendency to avoid answering any difficult question.’[17]

We can expect commercial judges to continue to criticise attempts to refine the evidence which is to be given by witnesses in court. Judges want, so far as possible, to hear a witness’s evidence in his or her own words. The 2007 Report of the Commercial Court Long Trials Working Party, in which two Commercial Court judges[18] were heavily involved, said:

Inevitably, in nearly all cases the witness statements are drafted by the lawyers, although based on interviews with the witness. But this process often leads to the statements being in lawyers’ language rather than the words of the witness. Also, all too frequently the statements spend far too long summarising documents that a party wishes to have in evidence and arguing the case. Not enough time is spent recording the witness’s actual memories of relevant events.[19]

The Admiralty and Commercial Courts guide[20] similarly emphasises that the function of a witness statement is to set out in writing the evidence in chief of the witness and that as far as possible, therefore, the statement should be in the witness’s own words; that it should not contain lengthy quotations from documents; and that it should not engage in argument.[21]

  1. The Code of Conduct is in Part 2 of the BSB Handbook (2nd Edition, April 2015, updated December 2016).
  2. Rule rC9.4. There is no specific prohibition in the solicitors’ Code of Conduct (Version 18, published 1 November 2016): see Chapter 5, ‘Your client and the court’, including IB(5.9) to IB(5.11); and see this interesting article by Professor Richard Moorhead in the Guardian in relation to David Cameron’s preparation for his appearance before the Leveson inquiry in 2012.
  3. Issued October 2005; last reviewed May 2016. Practice notes issued by the Bar Council do not constitute ‘guidance’ for the purposes of the Code of Conduct: see further paragraph I6.4 of the Handbook (pages 11-12 of the pdf version).
  4. At para 17.2.
  5. [2005] EWCA Crim 177.
  6. At para 16.
  7. At para 61.
  8. At para 61.
  9. At para 62.
  10. At para 62.
  11. At para 62.
  12. Code of Conduct, para gC7.
  13. [2016] EWHC 405 (Comm).
  14. At para 65.
  15. At para 67.
  16. [2016] EWHC 3188 (TCC).
  17. At para 18.
  18. Aikens and Gloster JJ; Aikens J chaired the working party which prepared the report; I was its secretary.
  19. At para 69.
  20. Last updated 18 March 2016.
  21. See paras H1.1(i), (iii) and (v)),

Won’t you stay? – prejudice arising from concurrent civil and criminal proceedings

Civil courts are sometimes asked to stay their proceedings in order to avoid prejudice to a party who is facing concurrent criminal proceedings, for example where there is a factual overlap concerning allegations of dishonesty or fraud. The courts are slow to grant a stay, and will always try to resolve the issue by case management measures short of a stay; but they will stay proceedings, in the exercise of their discretion, in an appropriate case.

The starting point is s 49(3) of the Senior Courts Act 1981, which provides:

Nothing in this Act shall affect the power of the Court of Appeal or the High Court to stay any proceedings before it, where it thinks fit to do so, either of its own motion or on the application of any person, whether or not a party to the proceedings.

CPR 3.1(2)(f) provides that the court may, unless the rules provide otherwise, ‘stay the whole or part of any proceedings or judgment either generally or until a specified date or event’.

The party seeking to stay civil proceedings where there are concurrent criminal proceedings is typically the defendant in both sets of proceedings, although as two recent decisions illustrate, this is not always the case.

In Bittar v The Financial Conduct Authority[1], the Financial Conduct Authority, supported by the Serious Fraud Office (‘SFO’), which was the prosecutor in concurrent criminal proceedings, sought a stay of its reference to the Upper Tax Tribunal (Tax and Chancery Chambers – Financial Services) pending resolution of the SFO’s criminal proceedings in respect of a charge of conspiracy to defraud. The SFO’s objections included that the defendant might seek to introduce evidence given or findings made by the Tribunal into the criminal proceedings, and said that it, too, was entitled to a fair trial.

The Tribunal said that there was a strong presumption against a stay and that it was a power which had to be exercised with great care and ‘only where there is a test of real risk of serious prejudice which may lead to injustice[2]. It declined to order a stay, partly on the grounds that any prejudice could be mitigated by case management measures including, if necessary, deferring the hearing of the reference itself until after the criminal proceedings had concluded.[3] In the meantime, the Tribunal gave directions for the parties to prepare for the hearing, and said that the matter should be kept under review.[4]

In Polonskiy v Alexander Dobrovinsky & Partners LLP,[5] the claimant asked the High Court to stay civil proceedings which he himself had brought, and to stay a counterclaim brought by a defendant, pending the resolution of criminal proceedings against him in Russia. He relied on an alleged risk of injustice to him not in the criminal proceedings, but in the civil proceedings. This was an unpromising start and, although the court considered the matter in detail (in a judgment which was 153 paragraphs long), it ultimately declined to grant a stay. The defendant in the civil proceedings tried unsuccessfully to persuade the court that the test to be applied was that a stay should be granted only in ‘rare and compelling circumstances’,[6] which is the test usually applied where the court is being asked to stay civil proceedings in favour of other civil (court or arbitral) proceedings.[7] The court rejected this submission and instead applied the principle, derived from earlier decisions of the Court of Appeal, that the court has a discretion to stay civil proceedings until related criminal proceedings have been determined, but that this is ‘a power which has to be exercised with great care and only where there is a real risk of serious prejudice which may lead to injustice’.[8]

  1. [2016] UKUT 265 (TCC).
  2. At para 16.
  3. See para 17.
  4. See para 17.
  5. [2016] EWHC 1114 (Ch) (Mr G Moss QC, sitting as a deputy judge of the High Court).
  6. See paras 135-139.
  7. See eg Reichhold Norway ASA v Goldman Sachs International (a firm) [2000] 1 WLR 173, CA, 186 (Bingham LJ).
  8. See paras 133 and 139; the quotation is from R v Panel on Takeovers and Mergers, ex p Fayed [1992] BCC 524, CA, 531 (Neill LJ); approved: Attorney-General of Zambia v Meer Care & Desai (a firm) [2006] EWCA Civ 390, para 36 (Sir Anthony Clarke MR).

Commercial Agents – the worst of both worlds?

I wrote a short article recently with Sophie Belgrove about the impact of certain types of contractual term on termination payments under the Commercial Agents (Council Directive) Regulations 1993.

First published in the New Law Journal in January 2016, the article is reproduced here by kind permission of the NLJ and its brilliant editor and deputy, Jan Miller and Danielle Munroe:

Commercial-Agents-The-worst-of-both-worlds-Belgrove-and-Padfield.