Treacy: Regrettable failure by Freshfields
The High Court has criticised City giant Freshfields for requesting changes to a draft judgment without informing the opposing solicitors.
Deputy Judge Pat Treacy described the failure as “regrettable” and said it caused more work and costs for the parties.
Freshfields was acting for medical products and technology company Convatec, which was defending an employee compensation claim under the Patents Act. The claimant was advised by Kingsley Napley.
The draft judgment was circulated to the parties just after 10am on 1 August, with a deadline for an agreed list of typographical corrections or other obvious errors of 10.30am on 7 August.
Freshfields sent an email, a minute late, that included agreed typographical errors but also proposed further changes which it had not discussed.
Judge Treacy said: “Kingsley Napley appear first to have learnt of the proposals when copied to Freshfields’ email to the court. Kingsley Napley regarded the proposed changes as unnecessary and objected to Freshfields’ failure to discuss them in advance.”
Freshfields said this was because discussion with junior counsel had been delayed owing to the vacation period. “Freshfields also noted that Kingsley Napley had been able to comment upon the proposals subsequently, so that the Court was aware of their client’s position.”
The judge cited Court of Appeal authority that, where there are exceptional circumstances that justify a court being asked to reconsider its draft, it was “a fundamental requirement that the other party or parties should immediately be informed, so as to enable them to make objections to the proposal if there are any”.
Here, “irrespective of the merits of Freshfields’ proposed changes, the fact that they were made to the court without prior warning to the claimant’s advisers or acknowledgement of that fact when emailing the court is regrettable”, said Judge Treacy.
The firm’s explanation “did not to me appear to give sufficient regard” to the importance of this ‘fundamental requirement’.
“While the lateness of identifying the proposals may have been unavoidable (despite the parties having been given a generous amount of time to comment on a short draft judgment), it is particularly unfortunate that the lack of notice to the claimant was not clear on the face of the original email so that the court was aware of the situation immediately.
“Kingsley Napley have now had an opportunity to make their client’s objections to the defendant’s proposals clear, but the piecemeal nature of the email correspondence is unsatisfactory, causing greater work and incurring costs for the parties.”
On the substance of Freshfields’ suggestions, the judge said she made “some minor clarifications” to her ruling as a result.
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