Moulder: Trial would be unfair if defendants were forced to proceed with junior counsel
The High Court has adjourned next week’s trial of a £32m negligence claim against a Manchester law firm because its KC is ill, holding that it would be unfair to force it to proceed with junior counsel.
This was despite the fact that it may not now be possible to relist the trial, which had been due to commence next Monday, until 2026.
Dame Clare Moulder said that, although she was “extremely reluctant to adjourn such a substantial trial” – and the claimants had contested it – the law firm, Kuits, could not have a fair trial on the current trial timetable or within the trial window.
“In my view, it would not be fair to expect junior counsel, even an experienced junior counsel as in this case, to take over the cross-examination in this trial and to take it forward as the leader, either on the existing timetable or the slightly delayed timetable,” she said.
This was because of the complexity of the case, rather than the ability of the junior, Miles Harris.
“Although junior counsel is familiar with the documentation, it is not the same as being prepared to lead the case, and it is no answer to the difficulty to suggest that other juniors could be brought in to assist and that the defendant can be expected only to make a short opening,” the judge said.
“To have a fair trial, the defendant should have a proper opportunity to defend the case brought against it. Whilst I accept that there is no need to have leading counsel present in every case, this is a very substantial trial, even in the Commercial Court…
“In my view to force the defendant to proceed with the junior counsel on the current timetable to trial, or even within the current trial window, would be unfair and the resulting trial would be unfair.”
The claimant property developer and his company are suing Kuits over the negotiation and agreement of a substantial loan facility.
It was only last week that the unnamed leading counsel told their clerk that they had become unwell and could not appear at the trial.
William Glynn, the partner in Clyde & Co acting for Kuits, told the court that instructing alternative leading counsel was not a realistic option “given the proximity of the trial, its length, the quantum at stake, the complexity of the issues, and the volume of the material which would need to be digested”.
The claimants said an adjournment beyond the trial window would cause them “very substantial” prejudice, given that it was likely that the trial may not be relisted for many months, and even into next year.
This was both because of the “catastrophic impact” the underlying events had had on the claimant personally and his business interests, and because of his funding for the litigation.
The court was told the claimants’ current budget would not be sufficient to accommodate further costs incurred on an adjournment and so they would have to ask their funders to increase it. It was “not certain” that this would be forthcoming.
“Mr Hext [for the claimants] also raised the prejudice that, on the assumption that the costs of the adjourned trial would run into the high hundreds of thousands of pounds, the multiple which the funders would require, which is taken out of the damages recovered and is not recoverable in costs, would, in the estimate of [his instructing solicitor], be nearly £2m.”
Further, the claimants’ after-the-event insurance cover would need to be extended too at a potentially significant cost, which would not be recoverable either.
Dame Clare acknowledged that the Commercial Court “cannot easily find space in the existing list to alter the trial window or to relist a case which will occupy court resources for over half a term”.
But she did not accept the submission that the additional costs of relisting the trial would be in the high hundreds of thousands.
While there would be costs incurred in the lawyers and experts having to reacquaint themselves with the case, the evidence had been finalised, the skeleton for the claimants filed, and the defendant’s skeleton in final form.
“I see no reason therefore why further significant costs would be incurred on an adjournment in relation to the existing evidence, or that there should be a need for any further or additional disclosure.”
As to funding, as the adjournment did not impact on the merits of the claim, “there is no grounds to suppose that, for that reason alone, additional funding to allow the matter to be taken to its conclusion would not be likely to be forthcoming”.
She added: “In my view, it seems more likely that the funder would wish to see the matter to conclusion, and… taken in context of the overall costs of the proceedings to date, the additional costs should be relatively limited.”
The risk was “not enough” to persuade her that the claimants would suffer “irremediable prejudice” – and even if they did, “I am not persuaded that the unfairness to the defendant is outweighed by any potential prejudice which may accrue to the claimants”.
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