Beware the client who is too busy to litigate

Clients need to understand from the outset of litigation not only how significant the cost of litigation can be, but also the time commitment.

Readers may well be used to advising their clients of the time involved if their case runs to trial, including giving evidence, hearing opponents' evidence and attending pre-trial conferences.  But, do clients really understand that they will be required to invest significant time in the litigation long before a trial comes around.

For busy and wealthy clients, in particular, who are used to delegating, the necessary time commitment can be a very unpleasant surprise and cause great difficulties for the solicitors, leading to a spiral of increasing costs and tension in the relationship. To avoid that, clients need to understand (i.e. solicitors need to explain) from the outset that there are some aspects of the litigation process which simply cannot be delegated, no matter how busy (and important/wealthy) they may be. 

In this article, we offer some guidance on how to foster client engagement and maximise the chances of engagement when it is really required.  If a client is reluctant or too busy to engage when they need to, there are going to be problems. If they are thinking of bringing a claim, are they really prepared to make the required sacrifices and do you really want to act for them if they aren't? If they are a defendant (and therefore have no choice about being involved), do they really understand how their prospects are impacted if they do not commit to the process?  Since these are the clients that tend to make complaints or bring claims against their lawyers when things don't work out, careful thought should be given at the outset to explaining their role, obligations and the expectations you and the Court have of them, in order to maximise the chances of a successful relationship and outcome.

We look at Practice Direction 57AC, which has now been effective for over a year and makes clearer than ever the need for witnesses to take responsibility for their witness evidence.  We also consider recent cases in which the Courts have criticised parties' engagement with the disclosure process.

Duties of parties to litigation

Most obviously, compliance with the Civil Procedure Rules is a prerequisite for parties to use the Civil Courts.  The aim of the CPR is to achieve just resolutions to disputes whilst at the same time ensuring efficient and proportionate use of Court resources, i.e. the Overriding Objective.  
The general obligation on parties to litigation is stated in CPR 1.3, which provides that the “parties are required to help the court to further the overriding objective”.  As such, in addition to complying with the CPR, the parties have a duty not to risk wasting Court time and resources.  
Parties will understandably rely heavily on their solicitors to manage the overall litigation process on their behalf to further the overriding objective.  They will also rely on the expertise of their solicitors to assist them to navigate every procedural step in accordance with the relevant CPR.  This way, there will be little risk of parties attracting sanctions for breaches and, where there is a risk of this happening, the solicitors need to explain the issues and recommend the best course of action.

Whereas solicitors can manage many aspects of the litigation process provided they have been given suitable instructions, there are certain tasks which expressly require the client's significant involvement.  Other than the trial itself, the key tasks are likely to be disclosure and witness statements – we examine these further below.

As a final point on the general duties, it is worth recalling that solicitors, as officers of the Court, owe duties to the Court as well as their clients.  Most importantly, they have a duty not to mislead the Court.  If a client is unwilling to engage when the Court requires it, the solicitor can be put in a difficult position.  Uncooperative clients can precipitate conflicts, and may leave the solicitor no option but to come off the record.
For example, a solicitor is duty bound to withdraw from the case if it becomes apparent that their client has knowingly not complied with their disclosure duties (Myers v Elman [1940] A.C. 282).  The solicitor may also be obliged to notify the Court.

Disclosure

Disclosure is now governed by the CPR, however its basic aim has always been to ensure litigants have access to relevant documents held by their opponents or by non-parties.  As such, the obligations around disclosure are aimed at achieving equality of arms and ensuring a fair trial.  Where a party fails to comply with their disclosure obligations, the Court can invoke its case management powers under the CPR to impose sanctions.  If this non-compliance is deliberate or dishonest, such as destroying relevant documents or falsely signing a disclosure statement, the party may additionally be liable for contempt of court.

Ordinarily, only the client will be aware of what documents may be relevant and where these might be located.  A solicitor will have to rely on their client's instructions on these issues, and readers will no doubt be well versed in carefully explaining the scope of a party's disclosure obligations to clients.  However, no matter how meticulously the solicitor might advise their client and assist with the disclosure exercise, the responsibility for carrying it out as required under the CPR rests solely with the client, as party to the litigation. Clients need to understand from the outset how significant this process can be in terms both of the time commitment (which in a document heavy case can be enormous and very costly) and of its impact on the outcome of the case. Cases can be won and lost at this critical stage.

Therefore, when it comes to the actual disclosure exercise itself, it will not suffice for a party to delegate it to others.  The Court has recently criticised Ed Sheeran for not engaging with the disclosure process after it transpired that this had been undertaken by his manager (Sheeran and others v Chokri and others [2021] EWHC 3553 (Ch)).  The Court ordered Mr Sheeran to undertake further searches.  The Court also, of its own motion, ordered Mr Sheeran to prepare a witness statement confirming he was personally satisfied that he had met his disclosure obligations.  The Court added that, whilst Mr Sheeran and his co-Claimants were "very busy people", they should "take responsibility for their own disclosure".

Had Mr Sheeran engaged with the original disclosure exercise, not only might the further round of disclosure, and all the associated costs of the application, been avoided, but there would have been no need for him to spend additional time drafting a witness statement to confirm his involvement.  It pays off in terms of time and costs getting it right the first time.

However, managing disclosure does require a balance to be struck, and solicitors should be similarly cautious of parties who, unlike Mr Sheeran, appear all too keen to take charge of their disclosure.  In Vardy v Rooney and another [2022] EWHC 304 (QB), the Court criticised Coleen Rooney's solicitors for permitting her to decide what was relevant and disclosable.  Whilst, in this case, the Court concluded the disclosure orders sought by Rebekah Vardy were unnecessary and disproportionate, solicitors should supervise their clients' disclosure to avoid similar criticism and, possibly, an order for specific disclosure and the opponent's costs.

Witness Statements

The CPR include various prescriptive rules regarding the preparation and submission of witness statements.  Moreover, the requirements for trial witness statements have been tightened up with the introduction of practice direction 57AC.   Nonetheless, it has always been obvious that when a party, or any of their witnesses, sign a statement of truth they are attesting to the truth of the evidence their statement contains.  Only they can do this.

As for disclosure, a party's duties in relation to Witness Statements therefore go beyond compliance with the CPR and a reckless or knowing failure to tender accurate evidence can similarly result in liability for contempt of court.

Until recently, witness statements were frequently used to set out a party's case.  In addition to the witness's evidence of fact, statements would include comments on documents, opinion evidence and submissions on the evidence.  Such statements were predominantly drafted by solicitors who would often take this opportunity to draw various threads together to advance their client's case in a coherent and hopefully persuasive way.

This naturally resulted in the Court's concern that time and costs were being wasted preparing these documents and dealing with them at trial (see our article High Court provides a reminder against "over-lawyering" of witness statements).  In an effort to tackle this problem, a new practice direction (PD) 57AC was drafted, and this came into effect on 6 April 2021.  It applies to trial witness statements in the Business and Property Courts.  As readers will be aware, this effectively limits the evidence a witness can give to matters of fact which need to be proved at trial and which they would be permitted to give as evidence in chief.  As commentary, argument and submissions do not come within this scope, witness statements drafted under the new PD should be significantly shorter.

Solicitors will still play a key role in the preparation of witness evidence, but the statement must reflect the witness' evidence and the witness must understand and be properly engaged in the process (see the Appendix to PD 57AC).  Despite witness statements turning out shorter under PD 57AC, their preparation will still be a lengthy process, and a litigant would be unwise to delegate this to their legal team.  The risk of pitfalls in cross-examination, and the consequent undermining of a witness's evidence, increases where they have done little more than check and sign a statement drafted by a lawyer.  This has always been the case.

However, under PD 57AC, witness statements now need to be verified by a confirmation of compliance by which the witness confirms, among other matters, that the evidence is within their personal knowledge, that it is drafted in their own words, and that they have not been asked or encouraged by anyone else to include evidence which is not their own account.

The implications can be serious.  The most draconian measure open to the Court is to strike out the offending statement, although we are not aware of a reported instance of its use.  Even if the witness statement is allowed in part (Mansion Place Ltd v Fox Industrial Services Ltd [2021] EWHC 2747 (TCC)) or a redraft ordered (Greencastle MM LLP v Alexander Payne [2022] EWHC 438 (IPEC), Prime London Holdings 11 Limited v Thurloe Lodge Limited [2022] EWHC 79 (Ch)), the offending party would be on the hook for the costs of the other side's challenge and the wasted costs of drafting the non-compliant statement. 

Moreover, to the extent that the challenge to the witness statement resulted from a party's failure to engage, the likelihood is that such engagement will ultimately be unavoidable if the Court orders a redraft.

Perhaps most importantly, problems with the statement can cause very serious credibility issues for a witness, which may well influence the outcome of the entire case.

How to manage busy clients

Clients are often busy people.  When they are paying solicitors to provide a comprehensive and streamlined service, they may have an expectation that they need not be involved other than paying the solicitor's fees and giving instructions from time to time.

We consider it worthwhile to reiterate some of the steps that should be taken with busy (or indeed any) clients to avoid their claims coming unstuck due to their lack of engagement.  

Clients should know from the outset that they are required to engage with the litigation process.  It is a prerequisite to them taking their dispute to the Civil Courts.  And clients should also be made aware of what can go wrong if they do not participate fully and timeously.
We would suggest that clients' duties are highlighted in engagement letters, and that the examples of witness statements and disclosure are given as illustrative examples, both in initial correspondence and initial meetings. If solicitors have doubts about a client's willingness to properly engage, they should give serious consideration to whether this is an instruction they want to accept.

As the claim progresses, where an upcoming task will require a client's input, clients should again be reminded of their duties to engage, and the potential consequences of failing to do so.

More generally, understanding the client's time restrictions and working within these from the outset should foster cooperation.  Pick your fights.  Making as few demands on the client's time where possible may mean the client is more receptive when their input is really needed.  
Finally, as professionals who like to keep busy with remunerative work and avoid distractions, readers are well placed to understand a client's frustration at the time they must spend assisting.  Solicitors should tell clients they understand this.  We are well equipped to empathise, and often all a client will need to know is that we recognise their frustration.  Empathising with clients can often diffuse the situation far more effectively than highlighting, yet again, the potential consequences of a failure to engage.

Insurance solicitors

Many readers will routinely act for parties and their insurers, and this can make the issues we have discussed more acute.  While some professionals will take a claim personally and provide round-the-clock assistance, this is often not the case.  Most professionals will be dragged into a dispute against their will.  Moreover, they may expect that the claim should be managed entirely by their insurers' chosen lawyers, and that insurers should foot the bill. 

Not only do busy insured clients often resent having their time taken away from their day job, but they may have difficulty appreciating that the time they give over to defending a claim is an overhead of their business and not usually indemnifiable under their PI policies.  

Of course, PI insurance policies usually contain cooperation clauses.  Against the context of an insured party's duties described above, such clauses make perfect sense.  Where the insured client is engaging fully with the claim, and cooperating with the solicitors' reasonable requests, the best result can be achieved for both insured and insurers.  Their interests are aligned.

Conversely, when an insured client refuses to cooperate, this is likely to result in avoidable sanctions, and the positions of both insured and insurer are prejudiced.  It follows that, when an insured client jeopardises their own case, their insurers may be entitled to withdraw support for the insured, or seek recompense for the prejudice suffered, so that the insured client can bear the consequences of their non-compliance.

Conclusion

Whether or not they have chosen to become involved in a civil claim, a party to litigation is required to engage with the process.  No matter how averse a client may be to taking the time to carry out disclosure in accordance with their obligations, or set out their witness evidence in their own words, they should repeatedly be reminded of the risks they face if they fail to do so.

Solicitors would also do well to see it from a busy client's point of view.  These are tasks no-one would relish if they are not being paid to undertake them, and it is worth acknowledging this.  Obviously, each client is an individual and, however it can be achieved, establishing a good mutually understanding relationship is paramount.

Taking a pro-active approach to the client's case management early on will ultimately benefit the solicitor and their client.  Otherwise, a solicitor may have the unenviable task of reporting to a client, who rebuffed an earlier request to carry out documents searches or prepare a draft witness statement, that a Court has made an order for the client to undertake a significantly more onerous exercise.  At worst, a client's witness statement may have been struck out, substantially prejudicing their position.  Not to mention the adverse costs order that has likely been made.