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Who’s been a naughty boy?

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Following White & Case’s recent removal from an oligarch dispute for a conflict of interest, WaitroseLaw reflects on a past few months packed with judicial spankings.

It has been a vintage few months for connoisseurs of judicial spankings. Not the sort usually administered in the back room of a discreet gentlemen’s club by an understanding woman in a wipe-clean outfit, but the metaphorical kind; a judgment so stinging, so outraged, so cuttingly critical of the participants, that lawyers throughout the land expel a sigh of sated schadenfreude. 

Of course, no-one really cares about cases which criticise the actual parties — as any wise client knows, they’re really just a side-show. Only a case where the lawyers themselves get hauled over the coals could elicit such unalloyed pleasure.

First up came the Tory MP suing the Murdoch empire for libel, in a case any sane observer could only want both parties to lose. In a rare victory for public opinion, it’s possible that’s what could actually happen. Andrew Mitchell MP’s late-night falling out with Downing Street police led to his resignation, the subsequent prosecution of one officer and the always welcome sight of Keith Vaz speaking out against dishonesty in public life (some background about the estimable Mr Vaz). But its lasting legacy is destined to be as a case study striking the fear of the Civil Procedure Rules (CPR) into a generation of young lawyers.

Following the Jackson reforms, civil litigators are supposed to discuss and exchange costs budgets so that each party can estimate sensibly how much it might be in for if it loses (rather than just sending threatening letters saying “U PAY ME ALL THE MONEY”). Mitchell’s lawyers sent theirs in six days late. In a terrifying example of the courts’ newly strict approach to misdemeanours, the court ruled that even if he succeeded in his claim, the most he could recover from the other side by way of costs would be the court fee, rather than his estimated costs of upwards of £500,000. According to the Court of Appeal, “well-intentioned incompetence” won’t fly as an excuse in the courts any more. (No word yet on whether this rule will be applied to the Lord Chancellor.)

But for legal geeks, the real stand-out moment of recent months was the pure poetry at paragraph 48 of this costs judgment. Ordinarily, the wranglings of the outrageously wealthy over an oil field in Kurdistan would be of interest only to the blondes who hang out in luxury hotel bars waiting for their very own Oligarch Charming. But it’s worth a read if only for this finely-wrought excoriation of magic circle behemoth Clifford Chance (CC):

“I have been spared sight of much of the 5,000 pages of inter solicitor correspondence. It is apparent to me, however, from what I have seen that some of the correspondence from Clifford Chance has been voluminous and interminable, in some circumstances highly aggressive and in others unacceptable in content. These have included ill-founded allegations of criminal conduct in the form of insider dealing, misleading the market and misleading the public about the relationship between Gulf and Texas. Whilst interminable and heavy-handed correspondence is becoming a perverse feature in some commercial litigation, it is not in any way to be accepted as a norm and parties whose solicitors engage in it should not be surprised if, in a case such as this, they end up paying the costs on an indemnity scale.”

The case sets an interesting precedent about the liability of third party funders, but CC’s opponents will chiefly treasure it for the opportunity to quote that passage in correspondence whenever their letters get a bit annoying. The firm has so far declined to comment on the judgment.

Raising the unforeseen possibility that they might have something to contribute to society other than inflated London house prices, the uber-wealthy continued to add to the general gaiety last month. White & Case were debarred by the High Court from acting for Victor Pinchuk in his $2billion claim against Igor Kolomoisky and Mr Gennadiy Bogolyubov, after “Tighty Whiteys'” NY office had given initial advice on a planned IPO of a company owned by Kolomoisky and Bogolyubov. Although detailed “ethical screen” procedures were later put in place (nearly two years after the possibility of a conflict was first considered) and no breach of client confidentiality was found to have taken place, the judge handed the firm its marching orders. White & Case described itself as “disappointed” by the judgment (the gargantuan amounts of money involved no doubt being entirely irrelevant).

As long as clients with a taste for wars of attrition and deep pockets continue to swill around the Royal Courts of Justice like over-oaked cabernet in a spittoon, the temptation to push at professional boundaries will undoubtedly be there. And there can’t be a single lawyer who hasn’t missed a crucial deadline at some point. But while embarrassing public criticism may be ample punishment for some, for others only private correction will do the trick. Time to dust down that riding crop…

WaitroseLaw is a lawyer with luscious organic selection, impeccable ethics and dinner party skills. She is not affiliated with or authorised by Waitrose.