Litigation has to be conducted in a cooperative fashion

Litigation has to be conducted in a cooperative fashion

In the context of the resolution of civil disputes, the governing principle behind the court rules and the Employment Tribunals rules is to deal with cases justly and, in relation to the court rules, at proportionate cost.  This is known as the “overriding objective”.

There has been an interesting decision recently in the case of Bates -v- The Post Office [2018], that is, the aggressive tactics of parties in litigation is counter-productive.

The claimants in this case are a group of sub-post masters, bringing an action against the Post Office, alleging that there were significant failings in the Post Office computer system which have in turn led to them suffering losses.  The case is listed for a trial to start on 5th November 2018, six lead Claimants will be giving evidence and 14 witnesses giving evidence for the Defendant.

The Defendant’s had made an application to strike out large parts of the witness evidence of the six main claimants. The purpose of a strike out application is to seek the deletion of written material from a party’s statement of case i.e. a witness statement so that it cannot be relied on in the proceedings.  The Defendant had originally sought to have the application heard within 10 working days of it being issued and then changed its position to have the strike out application dealt with during the trial itself on 5 November 2018.

The judge in rejecting the Defendant’s argument that this is an issue that should be left to trial, he made the following comments:

 “The defendant first made complaint – or raised concerns – about the scope of the claimants’ evidence about one year ago in October 2017. Given the statements themselves were only served in August 2018, that shows considerable, if not almost supernatural, foresight on the part of the defendant”

“… it appears to me that extremely aggressive litigation tactics are being used in these proceedings. This simply must stop. It is both very expensive, and entirely counter-productive, to proper resolution of what is so far an intractable dispute.”

“I wish to make one point entirely clear, so that this cannot be misunderstood. An aggressive and dismissive approach to such major Group Litigation (or indeed any litigation) is entirely misplaced. I repeat that such litigation has to be conducted in a cooperative fashion and in accordance with the overriding objective in the CPR.”

“However, this application regrettably falls into a pattern that has, in my judgment, clearly emerged over the last year at least. Attempts are being made to outmanoeuvre one another in the litigation, and tactical steps have led to constant interlocutory strife”

“An aggressive and dismissive approach to such major Group Litigation (or indeed any litigation) is entirely misplaced. I repeat that such litigation has to be conducted in a cooperative fashion and in accordance with the overriding objective in the CPR.”

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Irfan Dad

Employment & Litigation Paralegal

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