Some disputes descend to such grubby depths because of the conduct of the parties or their representatives, or often both, that the only course of action open to the tribunal is to put the boot in. As a commercial court judge once explained: 'Sometimes what the parties need is a good kick in the crotch, and it falls to the judge to give it to them.'
In these post-Woolfian days, where disputing parties are urged by the Civil Procedure Rules to come clean at an early stage and to discuss their differences long before they consider legal proceedings, the need for the judicial boot should be rare.
If required, the court can use its case-management powers to put hopeless claims out of their misery at an early stage and to penalise in costs those whose conduct of the dispute flies in the face of all reason.
This assumes that the judicial boot is well deserved.What happens if it is applied unfairly? In the case of Co-operative Group (CWS) v International Computers (draft judgment, 19.12.03) the Court of Appeal allowed the claimant's appeal against the judgment of technology and construction court Judge Seymour QC, in which he comprehensively dismissed its claim.
The main ground of the appeal was that the judge had made findings against CWS's witnesses and representatives that were unfair and unjustified.While bearing in mind that such allegations were very serious, the appeal court held that the judge's approach to the trial was so fundamentally wrong that he appeared to have lost the ability to try the claim with an objective judicial mind. In the circumstances, it had no alternative but to order that the 20-day trial be heard again.
CWS's claim against ICL for losses of some £11 million arose out of a project to integrate the computer systems for 650 of the Co-op's stores. Judge Seymour dismissed the claim on the grounds that there was no contract between the parties, and that, even if there were, it had not been breached and, in any event, the losses claimed were overstated.
This comprehensive defeat was based on a theory concocted by the judge which had not been raised at all during the trial.
The judge's theory was that senior CWS management harboured a grudge against ICL as a result of previous dealings on the funeral side of the Co-op's business, known as the 'funerals fiasco'.As a result, it was dragged reluctantly into dealing with ICL and was on the lookout for trouble as a means of extricating itself from the deal and exacting revenge.
CWS, the judge found, was motivated from the outset, at the highest level, by a festering grievance and the desire to cause a complete breakdown in the relationship. This conspiracy theory affected the judge's whole approach to the claim. He found that key personnel were acting with malevolent purpose, lacked credibility or were lying. For good measure he found that CWS's case had been brought without proper legal analysis and presented by leading counsel in a way that was unhelpful.
There were various problems with the judge's conspiracy theory: it had not been suggested by ICL; it had not been raised with any of the witnesses concerned; it included someone who had not even given evidence at the trial; and CWS had not been able to answer it. In not allowing it the opportunity to respond, the judge had breached one of the fundamental rules of justice - that both sides should be heard.
In any event, the appeal court found that the strategy the judge envisaged was so risky that no one in their right mind would have seriously considered it. It made no commercial sense whatsoever and was unsupportable. It further found that the judge's 'wounding and sarcastic' comments about the Co-op's legal advisers were unfair. Nothing was said about the considerable costs of retrying a five-week commercial action.
This important decision records a miscarriage of justice and casts an unfortunate shadow over the whole judicial process. Its implications are particularly worrying for those who use the technology and construction courts. It remains to be seen what, if anything, will come of it.