Solicitors must stand up to clients and not "behave like schoolchildren in the playground"

A colourful judgment last week in the intellectual property list is a sobering reminder that solicitors need to rise above "bad-tempered litigation" and keep it professional - even when the other side is being really annoying. (And clients should be sensible about costs.)

Quick background

In Crypto Open Patent Alliance v Craig Steven Wright [2022] EWHC 242 (Ch), HHJ Paul Matthews was asked to deal with the costs fall-out of two procedural applications. The detail of the applications isn't particularly important but paragraphs 2 - 4 of the judgment describe them if they are of interest. What is important is that the claimant was largely successful on both applications and the defendant only "won" on a point that did not need to be argued. Two unsurprising things flowed from this.

First, the defendant invited the court to "dissect the case into its various (and, in some respects,  minute) component parts" and to make different costs orders in respect of those different parts. In other words, the defendant was trying to get away from being the "losing" party and facing a costs order in respect of the entirety of both applications. (The defendant also tried to push off the costs determination to a detailed assessment rather than having costs summarily assessed.) Second, the claimant invited the court to award it indemnity costs.

The judicial microphone is dropped

HHJ Paul Matthews was less than impressed.

Solicitors need to keep it civil and manage their clients properly. In the context of the indemnity costs arguments, HHJ Paul Matthews said this:

"The problem is that this case is an example of what I would (unhappily) call bad-tempered litigation,   which is regrettably becoming more and more prevalent in the English courts. It somehow seems to have become acceptable for solicitors to become mere mouthpieces for their clients to vent their anger at their opponents. It is not enough for the clients to dislike or even hate each other: the solicitors must do so too. I simply do not understand why in 2022 professional, trained lawyers, who should know how to stand up to their clients, and concentrate instead on what is important in the litigation, think it is appropriate to behave like schoolchildren in the playground...

I am bound to say that, as an application for costs to be awarded on the indemnity basis, I find all this mud-slinging (on both sides) not only unedifying, but also somewhat underwhelming. Whatever the position forty years ago, the conduct of this litigation is, most regrettably, not out of the norm for these days. Both sides are behaving in an ultra-aggressive and unco-operative way towards each other, which is certainly not conducive to the efficient conduct of the litigation. In all the circumstances of this case, I do not think that it is appropriate to award indemnity costs to one of these two sides against the other. To do so would be to encourage similar behaviour in future."

Pretty self-explanatory.

Avoid the temptation to let costs disputes spiral. The court also found it to be a "highly undesirable feature of modern litigation" that parties are willing to allow costs disputes to turn into satellite litigation. In other words, litigants need to be sensible and realistic about what the court will order on costs. The judgment says this:

"I am sorry to be old-fashioned, but, when I started in practice, this kind of thing just did not happen. The losing party accepted liability for the costs, and the receiving party only rarely argued for indemnity costs...Nowadays, it seems, losing parties nearly always argue that they should not pay the costs at all...and winning parties nearly always argue that costs should be on the indemnity basis...This modern kind of satellite litigation is pernicious. In my view it has the effect of diminishing overall justice, and thus gives English civil procedure a bad name."

Multi-issue costs orders will be rare. Instead, the court's view (at least in this case) is that it is better to make an order allowing a percentage of the winning party's costs to reflect any allowances that are necessary for the fact that the winning party did not win on every point.