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”.
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.”