After Seymour’s attack on the Co-op, who’s judging the judges?

Both the Co-operative Wholesale Society (Co-op) and ICL (now Fujitsu Services) may have cause to regret using the Technology and Construction Court (TCC).
After Judge Seymour attacked the Co-op’s witnesses and lawyers last year, the Court of Appeal overturned his ruling last December and subjected Judge Seymour to serious criticism.

But how much has the row harmed the reputation of the TCC? Judge Seymour’s original ruling has so outraged those practising in the TCC that many lawyers are now questioning whether they should advise clients to seek an alternative forum for resolving disputes.

Judge Seymour is one of only six judges in the TCC, so you might think that you have a one in six chance of appearing in front of him. In fact, as one lawyer pointed out, Judge Seymour is so fast with his judgments that those odds are reduced further, as he’s often readily available. (Judge Seymour declined to comment to The Lawyer on his controversial Co-op judgment, the Court of Appeal’s criticisms or any part of his track record.)

For those of you who have not been following this epic case, here is a quick reminder. In 2002, the Co-op launched an action against ICL over its failure to implement an IT retail system.

At the beginning of 2003, Judge Seymour passed his verdict, which was full of vitriolic abuse for the Co-op’s witnesses, the case and its lawyers, DLA’s Graham Orch-ison and Richard Mawrey QC of Henderson Chambers. Judge Seymour claimed the Co-op’s case did not benefit from “any real legal analysis” and that the claim was “bordering on the nonsensical”.

Richard Mawrey QC now says: “Everybody was devastated. Largely because he [Judge Seymour] had given no indication at all that he was going to take a very extreme view of anything.”

While ICL’s lawyers, who were represented by Baker & McKenzie’s Harry Small and Henry Carr QC of 11 South Square, were jubilant and just a little amused, one of their team would later admit privately that it was a “silly judgment”.

The immediate victims of Judge Seymour’s vitriol were Orchison and Mawrey. The Co-op sacked DLA, replacing it with Ashurst’s Chris Vigrass and Jonathan Raynes; Mawrey was sidelined and asked to
assist Christopher Carr QC of One Essex Court.

In December 2003, the Court of Appeal delivered its verdict in record time, taking a mere four days to shred Judge Seymour’s original conclusions. “Put bluntly, the judge’s findings are obviously unfair,” stated the Court of Appeal in its judgment.

The judgment went on to conclude that Judge Seymour “lost his ability to try CWS’s claim with an objective judicial mind… He has demonstrated an inability to grapple objectively with the issues of fact and law presented to him.” It ordered a retrial, and ICL is attempting to take the case to the House of Lords.

A source at DLA reveals that the firm felt vindicated by the Court of Appeal, but no doubt Orchison would have been happier clearing his own name rather than relying
on Ashurst. Mawrey, too, welcomes the judgment, but admits: “After a year in the doghouse it’s not easy to turn [my reputation] around.”

The Court of Appeal’s harsh words confirmed what many lawyers practising in the TCC have suspected for some time.

When Judge Seymour was appointed to the TCC just over three years ago, most welcomed the appointment, but the Co-op case isn’t the only one to have raised eyebrows.

The Court of Appeal criticised Judge Seymour for his 2002 decision in Clegg v Andersson. Judge Seymour said in his judgment: “These were disgraceful allegations for which, in my judgement, there was not a shred of justification.” The Court of Appeal, however, said the “criticism of counsel… was unjustified”.

In 2001, Judge Seymour removed the arbitrator
of Miller Construction v James Moore Earthmoving for misconduct. The Court
of Appeal said: “The arbitrator had not been given notice of the grounds upon which allegations of misconduct were made, and there was nothing to show that he lacked the ability to reach a fair and balanced conclusion.”

Mawrey claims that “the Technology and Construction Bar Association is appalled by what’s happened, because they feel that the TCC is now bad news”.

Given Mawrey’s experience, his stance is understandable, but his comments are echoed by numerous other litigators in the field. As another says: “The idea was that the TCC would expand its role to include all sorts of technical issues – for example telecoms, IT etc. I think that’s generally working, but the issue is Judge Seymour.”

There are alternatives to the TCC. Birmingham’s TCC, Mercantile and Chancery courts have a good reputation for dealing with TCC issues, but could struggle administratively with big cases. The Chancery Division is a possibility, but it is not really geared up to have six-week trials on complicated matters of contract laws. The Patents Court, too, is used to dealing with technical issues, and could therefore be a good forum, or there’s the expensive alternative of arbitration.

A Department for Constitutional Affairs (DCA) spokesperson told The Lawyer: “Where the Court of Appeal does record criticism of the trial judge, the judgment is always sent to the judge concerned; and where there’s any reason for concern about the conduct of the judge, it’s sent to presiding judges. From time to time, where judges aren’t performing adequately, they may be given advice and guidance or training.”

So has Judge Seymour been given any advice, guidance or training? The DCA would not comment.

The costs for ICL at the initial trial were £1.6m, and one can assume that the Co-op’s were similar. The two sides have now spent more than £1m between them on the appeal. That’s at least £4m, and two years on – House of Lords aside – we’re back to square one.

The Court of Appeal said the parties should consider settlement, but the costs may now prevent that.
According to the Court of Appeal, neither the Co-op nor ICL is to blame. So who pays the costs? The Lord Chancellor, perhaps?