Appeal judge bemoans ‘trench warfare’ of litigation tactics

The Court of Appeal has thrown out a freezing order challenge in a ruling where two judges made scathing criticisms of disclosure failings.

In MEX Group Worldwide Limited v Stewart Owen Ford & Ors Lord Justice Coulson said that the respondents had engaged in ‘trench warfare of the most attritional kind’, taking up as much time arguing over disclosure as they did on the substantive issues.

The Court of Appeal judge said the tactic of making multiple allegations of non-disclosure was wrong and he urged lawyers preparing this sort of attack to concentrate only on issues that are ‘clear-cut and obviously important’.

He added: ‘Quality not quantity should be the watchword. The failure to follow that course, as happened both before the judge and again on appeal, means that there is a real risk that the best points become buried in an avalanche of trivia.’

Lord Justice Males similarly said that the ‘message has not got through’ on keeping a sense of proportion on disclosure issues. ‘In this case we have been prepared to separate the wheat from the chaff, but I would suggest a different approach for the future,’ he added. ‘In future, if the court is presented with a long shopping list of alleged failures of disclosure, with no attempt made to identify the relatively few points which really matter, it should simply decline to consider the issue at all.’

The claimant, a Hong Kong-based holding company, had appealed against the decision of Simon Tinkler, sitting as a Deputy High Court Judge, to set aside a worldwide freezing order applying to three defendants. The judge said the claimant had established a good arguable case but had failed to show sufficient risk that the defendants would unjustifiably dissipate their assets. He also held it was ‘inexpedient’ to grant a freezing order because of the lack of any connection with England and Wales.

Last October, the claimant had started the underlying proceedings in Scotland and the equivalent of a freezing order was made for that jurisdiction. The claimant then applied for a wider freezing order through the English courts.

Males said it would be ‘absurd’ for the English court to shut its eyes to developments in the Scottish proceedings and that where the Scottish court has the power to make a worldwide freezing order but chooses not to do so, he saw no reason why the English court should intervene. Given that none of the respondents had any significant or meaningful connection to the UK, the judge had been right not to grant a worldwide freezing order. The appeal was dismissed.

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