Mr Justice Tomlinson labelled the behaviour of some of the country’s top lawyers as “unattractive” last week as he delivered a damning judgment on the collapse of the BCCI trial.
Last Wednesday (12 April), Tomlinson J handed down his remarkable 87-page decision giving his reasons for granting the Bank of England’s application for indemnity costs following the collapse of the BCCI trial. In it, he reveals his concerns about the handling of the case and criticises the lawyers involved in no uncertain terms.
“Any suggestion that the defendants incurred costs on an unreasonable scale will need to be tested against the background of litigation apparently conducted by the liquidators and their legal advisers by reference to standards which I did not recognise,” said Tomlinson J.
He went on to divulge that, a year into the trial, he had taken the highly unusual step of confiding his concerns about the case to the then Lord Chief Justice Lord Woolf.
“I told the Lord Chief Justice, then Lord Woolf, that the case was a farce,” the judge wrote. However, the senior judges came to the conclusion that, despite the risk of the case damaging the reputation of the English legal system, there was no realistic way of halting the trial’s progress.
The judge indicated in February that he was granting the indemnity costs application. The costs hearing took place without any representation from the liquidator of BCCI, Deloitte, whose counsel and solicitors Lovells had been absent from the courtroom since discontinuing the trial on 2 November last year.
Their absence prompted the bank’s lead counsel, Nicholas Stadlen QC of Fountain Court Chambers, to describe the claimants’ approach to the litigation as “disgraceful”.
In many ways Stadlen was echoing his own closing statement made in November. Back then, Tomlinson J avoided commenting on the case and its handling, except to say: “It has been a matter of surprise to me for about a year now that the action was being pursued.”
Having spent two months considering the issues, Tomlinson J was able to return to court last week with much more detail – and much more criticism.
His judgment is littered with adjectives such as “hopeless” and “lamentable”. He described the liquidator’s misfeasance claim as “odd”, and said its case was littered with “myriad hopeless inconsistencies and implausibilities”. Tomlinson J criticises the liquidator’s counsel, singling out Essex Court Chambers’ Gordon Pollock QC and Lord Neill of Bladen QC of Serle Court in particular.
Tomlinson J pointed to the fact that, once Pollock had stepped down after making his 80-day opening speech, Lord Neill stood up to make “exceptionally careful and measured submissions” which did not support the points Pollock had made.
“In retrospect, it can be seen that much of Mr Pollock’s 80-day address to the court was wasted in an effort to surmount a hurdle which was placed lower than Lord Neill acknowledged the law required the bar to be set,” said Tomlinson J.
The judge said the case pleaded by the liquidator was often different from the case that the House of Lords directed should be heard in 2000 when it dismissed the bank’s strike-out application.
Pollock is also slammed for his behaviour in court. Tomlinson J noted: “Mr Pollock was only infrequently rude to me and I ignored it. Not everything said by Mr Pollock is intended to be taken seriously and sometimes his offensive remarks are the product of a well-intentioned but ill-judged attempt to lighten the mood.”
But Tomlinson J made it clear that Pollock’s attitude towards his opposite number, Stadlen, was unacceptable. “Mr Pollock’s sustained rudeness to his opponent was of an altogether different order,” the judge wrote. “It was behaviour not in the usual tradition of the bar and it was inappropriate and distracting. I should have done more to attempt to control it.”
One of the most remarkable aspects of the judgment is Tomlinson J’s evaluation of his own performance during the trial. He admitted that he still did not fully understand the case after the liquidator’s opening submissions, saying: “It rapidly became apparent to me during Mr Stadlen’s exposition that at no stage during the claimants’ presentation of their case had I had a proper grasp of this subject, or of the weight of the documentation which bore thereon.”
Indeed, Tomlinson J’s case management raised eyebrows in the City. Norton Rose litigation head James Bagge said: “It doesn’t reflect well on the system, which seems incapable of dealing with what the judge himself describes as farce, nor on the lawyers advising the claimants.”
But Tomlinson J’s detailed and thoughtful judgment was welcomed by lawyers. Freshfields Bruckhaus Deringer partner John Goddard, who was leading the bank’s defence, told The Lawyer: “What it is is a serious attack on the substance of the liquidator’s case and the manner in which it was conducted.”
Lovells declined to comment, but the liquidator’s statement said: “The liquidators undertook and conducted this litigation in absolute good faith, in the interests of the creditors of BCCI and on the basis of legal advice. They are therefore disappointed by the way in which the judge has characterised the conduct of the case.”
Pollock declined to comment. Lord Neill and Matrix Chambers’ Clare Montgomery QC, who also acted for the liquidator, were unavailable for comment.