Judge critical of Fieldfisher’s 'continued failure' causing trial delay

International firm Fieldfisher has come under criticism from a judge over its failings which helped to cause a civil trial to be delayed more than two years.

Following a hearing last month, Mrs Justice Joanna Smith has published her judgment on issues relating to the delay and mistakes made in the e-disclosure process in a case involving intellectual property in the toy industry, concluding that the conduct displayed was ‘unreasonable to a high degree’.

In Cabo Concepts Ltd v MGA Entertainment (UK) Ltd & Anor, the court had heard that in the lead-up to June’s trial date, around 40% of documents were missed by the defendant MGA – Fieldfisher’s client – during the harvesting stage, amounting to 800,000 documents in total. Nearly half of all potentially relevant documents were never even reviewed and a number of warning signs inadvertently overlooked. The judge made clear that in a case where the claimant had made allegations about unlawful conduct recorded in emails sent by MGA, proper conduct of the disclosure process would be of the ‘utmost importance’.

US-based MGA had assured the claimants and the court that the disclosure process would be supervised by specialists in the UK, including both Fieldfisher lawyers and the firm’s in-house document review provider.

The judge said lack of supervision ‘appears to lie at the root of the problems that then occurred’, and Fieldfisher did not question the information received from MGA or instruct an e-disclosure expert.

She added: ‘Fieldfisher ought to have applied a more rigorous approach to examining the assurances from its client that it had the necessary expertise.’

The court heard that when a key email from a toy retailer was found to have been overlooked, Fieldfisher partner Nick Pimlott was ‘not unduly alarmed by this’ and said that disclosure was an ‘imperfect process and errors occur’. This one errant email, he said in his evidence, ‘did not set ringing alarm bells that the entire harvesting process was flawed’.

The judge said Fieldfisher’s previous insistence that re-harvesting would be disproportionate was ‘surprising’. She continued: ‘There was no sound basis on which Mr Pimlott could conclude that the missing email, described by MGA as “a mystery”, was of minimal significance and could effectively be “parked” without further investigation.

‘There was no explanation whatever for it not having been captured in disclosure. It was plainly a red flag and it should have been investigated.’

The judge said that the failure to follow up red flags was ‘part of a narrative of failings relating to disclosure which plainly fall outside the norm’. The deficient re-harvesting and subsequent evidence of Pimlott was ‘part of a continuing failure adequately to grapple with the need for proper supervision and oversight’ of the process.

Costs of the aborted trial date were ordered on the indemnity basis, with 45% of the claimant’s £1.3m costs awarded on account. The new trial is set to start in October 2024.