Nothing new under the sun: prolix pleaders then and now

Posted on 15th May 2013 in Case Comment, Legal Profession

In a recent Commercial case Standard Bank plc v Via Mat International Ltd [2013] EWCA Civ 490 the Court of Appeal drew attention to Khader v Aziz (Note) [2010] 1 WLR 2673, reiterated its warning against the unnecessary length of skeleton arguments and reminded parties of the possibility of the sanction of adverse costs orders.

Aikens LJ recognised that the problem was not new. He said, at paras 29-30:

In a reported case, Mylward v Weldon (1596) Tothill 102, 21 ER 136; [1595] EWHC Ch 1, it is stated that in 1595 the son of a litigant (the report does not say whether the miscreant was a barrister) produced a pleading (a replication, ie reply) of “six score sheets of paper” which the Lord Keeper deemed could have been “well contrived” in 16 sheets. The Lord Keeper (Egerton) ordered that the miscreant be imprisoned in the Fleet until he paid a fine of £10 (a huge sum) to Her Majesty and 20 nobles to the defendant. In addition the Lord Keeper ordered: “…that the Warden of the Fleet shall take the said Richard Mylward… and shall bring him into Westminster Hall on Saturday next, about ten of the clock in the forenoon and then and there shall cut a hole in the myddest of the same engrossed replication…and put the said Richard’s head through the same hole and so let the same replication hang about his shoulders with the written side outward; and then, the same so hanging, shall lead the same Richard, bare headed and bare faced, round about Westminster Hall, whilst the Courts are sitting and shall shew him at the bar of every of the three Courts within the Hall and shall then take him back to the Fleet…”

He concluded that that sanction against prolix pleaders and submission authors might not be available today, but failure to comply with the letter of the Practice Direction on written submissions and the failure to heed the need for brevity in pleadings might well lead to strict adverse costs orders.

It is nice to know that the law reporters were on hand to record events.

This is a guest posting by Alison Sylvester, Barrister, who is one of ICLR’s law reporters assigned to the Court of Appeal. The case is not being fully reported, but a case note will be available to subscribers on ICLR Online.

See also (on this subject): UK Human Rights Blog, Should lawyers get named and shamed for being boring?