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High Court judge left unimpressed after barristers spoke too quickly

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Bar students take note

A High Court judge has been left less than impressed over the conduct of a hearing in which barristers spoke so quickly in court that the transcriber could no longer continue.

In a postscript to his ruling in Libyan Investment Authority v Credit Suisse International & Ors, His Honour Judge Pelling QC said the speed and brevity of the oral advocacy had been unacceptable and could lead to a cost sanction.

The applications for summary judgment or to strike out the claims had been listed for a time that was “manifestly too short” given the number of parties involved, the number of issues raised, the volume of evidential material generated and authorities relied on, the judge said. In total, 15 barristers were involved, including seven QCs, for a hearing that lasted just six days in June and July 2021.

The judge said this led to the shortening of the oral submissions to force them into the allocated time, and that on the last day submissions were “spoken at a speed that made them almost incomprehensible”.

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The transcriber complained twice about the speed at which submissions were delivered, before saying she was unable to continue, resulting in an early mid-day adjournment. The judge noted in the postscript that things improved thereafter but only by the parties making references to their bundle which meant that he would then have to unbundle their points after the hearing was complete.

“None of this is remotely acceptable,” said Judge Pelling. “Oral advocacy remains the main-stay of the way civil litigation in England and Wales is conducted and it is not acceptable oral advocacy to reduce submissions to little more than a series of references that a judge can then be left to find across a vast bundle (assuming that all the references given are accurate) in an attempt to provide a coherent judgment within an acceptable time.”

The judge added that this was all the more unacceptable because the parties had prepared the case “without either restraint or constraint or any attempt at achieving proportionality”. The bundle ‘master index’ ran to 44 pages, with the hearing bundle consisting of 36 separate bundles of evidence and attachments to witness statements running to “many thousands of pages”.

“This is material that would have justified a trial measured in weeks rather than days, not an application hearing listed as it was”, the judge said, adding: “I will consider on hand down whether to impose a cost sanction in respect of this conduct.”

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12 Comments

The QC’s Only Fans Account

So for all the emphasis on wanting pupils to ‘excel’ in debating, they can’t actually speak clearly to save themselves???

Debating pretty much depends entirely on school teachers being bothered to put students into competitions. You aren’t any less of a capable public speaker just because your school didn’t organise debates.

Good for the judge for speaking out against behaviour that makes their working life harder. What a slap-down.

(32)(4)

Anonyme

From what I’ve seen from going to a few British Parliamentary – style debating competitions, the emphasis really does seem to be on regurgitating as many points as quickly as you can, and the judges reward you for it as as they’re used to this frankly bizarre way of doing things.

I once came second in a debate at an inter-university competition to some girl who spoke so comically fast she barely had time to breath. Yet she still won because she’d articulated more points than I had whilst trying to keep things at a good, measured pace.

BP competitive debating is really at the root of this sloppiness. It really does do damage to the art of rhetoric.

(28)(4)

Anon

Why are you blithering on about schools?

(10)(3)

Son of Silk

The easiest way for barristers to recruit people like themselves (rich and privately educated) is to set parameters which only apply to privileged kids. The truth is that debating is mostly a private school past-time.

(28)(3)

Anna

Itsnotthebarristersfaultitsthejudgesfaultforbeingunabletofollow

(9)(5)

D

Case management as much the court’s responsibility as the parties. Perhaps the judge can reflect on what he could have done to manage the case appropriately rather than threatening the parties on costs

(17)(1)

dogbiscuit

Correct. The allocation of court time is a judicial decision. It is telling that there is no reference in the judgment to any time estimate provided by the parties. The impression is that the court of its own volition has listed the hearing with an inappropriate time estimate and has thereby placed counsel in an impossible position. I also note that the Judge was able to make a decision based on the submissions made. One wonders whether this would have been possible had counsel spoken at a more leisurely pace.

(6)(1)

Al

You do have to provide a time estimate for any and all hearings; and you’re supposed to agree with the other side. Although you can tick a box to say it hasn’t been agreed; say for example it’s an ex parte matter.

There is a reference at para 139 of the judgment to the parties giving an unrealistic estimate.

There’s been a lot of authority recently about over optimistic time estimates. It is always tempting to assume you’ll be quick; just to get a listing as soon as possible; but there’s been some scary costs sanctions for getting it wrong.

Although as Si Nick points out below; sometimes the list office will just try to squeeze you in anyway.

Sometimes that can be useful judicial feedback. If the order says the judge thinks this matter is suitable for a 15 minute hearing; then that can be a clue as to what they think of the application.

(3)(0)

Guy

The time estimate came from the parties and was hopelessly inadequate.

(0)(0)

Anonymous

The civil courts set the time following time estimates estimate by the parties. The judge does not decide. For a summary judgement hearing there will not be a pre trial case management conference where the time estimate might be queried.

(0)(0)

Si Nick

Crazed aggressive opponents give a 1 hr time estimate on an application and file without asking you, or worse they ask at 2pm on a Friday saying they’ll file at 4pm. You write to the Court and say it is a 3 hr hearing. To save costs given underfunding at in the judicial system, it is listed for 1 hr anyway. You get 20 mins to make submissions after your opponent takes 35 mins on their submissions, when you need 90 mins. Oh and the judge tells you the never saw one side’s filed skeleton. THAT is why barristers have to speak so quickly nowadays.

(21)(0)

Al

@ Nick

I had this once:

“Has your honour had an opportunity to read my skeleton argument?”

“I have.”

“Then I can be brief.”

“I’m afraid I didn’t actually avail myself of the opportunity.”

(24)(0)

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