Contumelious: the order of the day
Posted on 18th Mar 2013 in Case Comment
If a party is charged with drawing up an order it is the duty of its solicitors and counsel to produce a draft that fairly reflects what they think the judge decided or directed. Thus spake Edwards-Stuart J on 14 March 2013 giving judgment in Webb Resolutions Ltd v JV Ltd (trading as Shepherd Chartered Surveyors)  EWHC 509 (TCC) at para 19. So far, so uncontroversial. But he went on to say:
Save for the most complicated directions, this seldom presents any difficulty. What Rosling King did in this case was to produce an order that reflected the directions that they or their clients would like to have, and not the directions that the court in fact ordered. That is wholly unacceptable: it is not just unreasonable, it is verging on the contumelious (to use an old fashioned, but completely apt, adjective). Rosling King’s professed difficulty in the drafting of the order was nothing of the sort: their difficulty was in persuading RPC to agree to an order in terms which had not been made. RPC were wholly justified in resisting this and, indeed, their version of the order reflected what I had ordered as Rosling King, by their final and unwilling consent to it, must be taken to have accepted.
To explain the background: Rosling King were solicitors for the claimants, who were assignees of a centralised mortgage lender, suing the defendant surveyors in respect of allegedly negligent valuations. At the case management conference (CMC) on 23 November 2012, the judge decided that issues relating to the validity of the assignments and negligence in relation to the lending should be dealt with first, and issues in relation to the actual valuations, if they arose, thereafter. Having given a short judgment, his Lordship asked claimants’ counsel and solicitors to prepare a draft order for agreement with the defence team. Usually, that would result in the production of an agreed order. Instead, at para 8:
… what happened in this case was quite different and, in my experience, unique. Three days after the hearing the claimants’ counsel sent a draft order to the defendants’ counsel that bore almost no relation to what I had directed. In effect, the draft order provided for disclosure, exchange of witness statements and expert evidence on all issues in the case after which there was to be a further CMC to consider the precise scope of the issues to be determined at the first hearing. By contrast, the directions that I had given limited disclosure and the exchange of evidence to the assignment and lending issues. This was, as I have already explained, intended to avoid the costs of dealing with the valuation issues in case the judgment at the first trial disposed of one or more of the claims altogether.
The defendants’ team did not agree with the proposed draft and after further exchanges Rosling King wrote to the court explaining that they were “experiencing great difficulty in drafting the order in a way which will give effect to the court’s wishes but will avoid duplication of time and costs”. According to the judge, at para 12:
I regard this statement as disingenuous. Rosling King were having no such difficulty. They were, quite simply, trying to persuade the defendants to agree to an order that was in different terms to that which had been directed by the judge. No application had been made to vary the order (under the provision giving permission to restore) or for permission to appeal (although an appeal would have faced difficulties since the claimants had effectively consented to the terms of the order).
The defendants’ solicitors, Reynolds Porter Chamberlain (RPC), responded with their own draft order, which the judge proposed to use as the basis for the court’s order, and to which Rosling King belatedly consented (para 14). RPC then asked for their costs incurred as a result of Rosling King not agreeing to the order of the court. It was with that application that the present judgment dealt. He said, at paras 21 and 23:
In my judgment, what occurred in this case must not happen again. Solicitors and counsel are to give effect to court orders; they are not to attempt to manipulate them to their own or their client’s perceived advantage.
In my judgment, the Defendants are entitled to recover the costs which were unnecessarily incurred by their solicitors and counsel in their protracted attempts to obtain agreement to an order in the form that had been directed by the court.
The meaning of “contumelious”
The judge’s description of the conduct of Rosling King in the Webb Resolutions case as “verging on the contumelious” is pretty strong criticism. In a discussion of the case on Twitter, where a link to the case was posted by barrister Thom Dyke, another correspondent noted that it was “strong vocabulary use” and another (@cosaint_defence) helpfully offered a link to a recent Irish case, Sullivan v Boylan (No 2)  IEHC 104. Hogan J when awarding damages for the infringement of the plaintiff’s constitutional rights by the third defendant debt collector (a Mr McCartan) in harrassing her and “watching and besetting her home”, described the latter’s conduct as “outrageous, contumelious and malicious”. His Lordship used the word again later on in his judgment, at para 51, when justifying an award of exemplary damages:
Given all that I have said in both the first judgment and in this judgment regarding the oppressive, arrogant and contumelious behaviour of Mr McCartan … it is entirely appropriate that exemplary damages should be awarded.
Hogan J noted that, in contrast to the builders who had instructed him to collect their alleged debt, “Mr. McCartan has never appeared and has not been represented at any of these hearings.” That in itself might be regarded as verging on the contemptuous (of court), but whether it amounts to contumely is a moot point.
The word is not commonly enough used for most people to know immediately what it means, and the day after the Webb Resolutions judgment someone was on Twitter asking
Quick – without looking it up, does anyone know what ‘contumelious’ means? Responses tweeted back included
Kinda like ‘insultingly dismissive’.,
It means really, really bad.q> and (perhaps most accurately)
It means doing something contemptuous, eg of the court. Contumely is the noun, or contempt. Deliberately insulting.
It should not, however, be confused with “contumacious” which means wilfully obstinate, stubbornly disobedient, though this could equally be used to describe someone who, contumeliously, disobeys a court order or injunction.
Searching for the word amongst the 77,000-plus reported cases on ICLR Online, I found the word “contumelious” in 100-odd cases and, without checking them all, it seems generally to be used for conduct disobedient of the court, refusing to comply with an order or abusing the process of the court.
… mere negligent failure to serve a claim form in time for the purposes of CPR rr 7.5 or 7.6 was not, without more, an abuse of process; that for a matter to be an abuse of process, something more than a single negligent oversight in timely service was required, such as inordinate and inexcusable delay, intentional and contumelious default, or at least wholesale disregard of the rules…
In Kuddus v Chief Constable of Leicestershire Constabulary  2 AC 122;  2 WLR 1789, para 63, Lord Nicholls of Birkenhead observed (in relation to an award of damages for misfeasance in public office):
On occasion conscious wrongdoing by a defendant is so outrageous, his disregard of the plaintiff’s rights so contumelious, that something more is needed to show that the law will not tolerate such behaviour. Without an award of exemplary damages, justice will not have been done.
These give some flavour of the kind of conduct required, to which another recently fashionable word might on occasion be applied, “egregious” (conspicuously and outrageously bad or reprehensible, according to the dictionary). This word has been used in about 25% more reported judgments on ICLR Online than “contumelious”.
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