Advocacy Lecture Series: Preparation for Interim Applications Part 1: Fundamental Principles Michael Lerego (Presenter) Well good

evening, thank you for your patience in waiting. Im delighted to welcome our speaker tonight Timothy Dutton, Q.C. Tim has a very

distinguished career at the Bar, in addition he has been leader of the South East Circuit, he was Chairman of the Bar in 2008 and since relinquishing that post he is now head of Fountain Court Chambers which some of you will realise means he is my Head of Chambers. He combines a flourishing

practice in commercial law with a particular emphasis of regulatory work amongst his clients of the Financial Services Authority and the Law Society. But quite apart from all of those things that hes done he was one of the pioneers of advocacy training. Twenty years ago those doing the

predecessor of the course you are on didnt have any training in advocacy and Tim was one of the group of far sighted people who realised that advocacy training for students would be a good idea and even more radical advocacy training for practising barristers which is now an accepted part of the structure of the profession. He devised the South Easts own advanced advocacy course which is held annually in August and has trained advocacy in around, many countries around the world which follow the common law tradition of oral advocacy. Tim Dutton. Tim Dutton, Q.C., (Speaker) First of all thank you to all of you for being so patient and to Michael for an absurdly generous introduction. Youll now see its down hill from here. The

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topic of the talk as you know is interim applications in civil proceedings. Its a very broad topic. Over the last 30 years of my own practice Ive been

involved in hundreds of interim hearings where the relief being sought may be as modest as a request for an extension of time or for production of a few documents to something far more significant, such as searching numerous buildings simultaneously with organised search parties under the supervision of teams of supervising solicitors, the seizure of documents from buildings in large quantities of electronic computer material and so on. marshalling of all of that material in large complex litigation. The fact that the topic is a large one, doesnt mean that there arent certain fundamental principles which everyone of us must have in mind before embarking upon or indeed defending any application for interim relief. What I hope to do in this talk, is to draw out the general principles and then as the lecture progresses Ill try and illustrate some of them from particular examples, some anecdotal war stories. The great joy of giving a lecture is that you talk about yourself! At the point, lets start with some general And then the

principles. At the point when any client comes through the door or papers come, often in interim applications by email, the first question you need to ask is what is the minimum relief which I require for my clients interests? Regardless of whether, which side youre on, whats the minimum relief either that I require to obtain as claimant or that I think the court will grant. Now lets assume for the moment that youre a claimant for relief, doesnt matter which side youre on but youre seeking some kind of relief. The second question is, will it be realistically possible on the merits to obtain the relief or the denial of it from the court? The third, which court will grant or refuse the relief? It is not

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unknown for people to go with fabulously prepared applications to the wrong court. So do work out whether you need to be in the Lands Tribunal, the Employment Tribunal, the County Court or the High Court otherwise things could go horribly wrong.

The next, what cause of action or legal principles do I need to rely upon in order to obtain the relief or the refusal of it. If you havent worked that out things will go wrong. One has to have a very clear head particularly in urgent injunctions as to what legal principle, what cause of action Im founding what Im saying on. And that will then enable you to articulate your oral and written submissions. Next, what materials must I assemble in order to advance the application? Now youve been through exercises, youre bound to need a set of proceedings issued, youre bound to need an application notice, youre bound to need some kind of statement or statements in place, youre bound to need a written skeleton argument and with a bit of luck youre going to have a, not with a bit of luck, youll have a draft order ready. All of which, all of which will be paginated in a bundle but which witness statements do I need, from which witnesses, get all of that marshalled in your mind. Next, what undertakings must be given by my side or the other side in order for the relief or the refusal of that relief to be given? If you havent worked out your undertakings and somebody pops up and says, are your clients going to give a cross undertaking in damages?, oh of course they are!, is it secured?, ooh I havent thought about that and life begins to unravel. So think through the undertakings, it may not be a damages case but you may need to undertake to issue proceedings even if a short document application

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case within 24 hours or something of that sort. Who, if anyone, needs to be notified and when about this application? Who needs to be notified about the application, the hearing of it and attendance at it? Sometimes you get a call 24 hours before you go into court and say oh Mr so and so from the clients cant come, hes involved in a massive deal in Dubai, is that okay? and you think oh its okay and youre at court 24 hours later and the judge says what are your instructions on x or you havent thought through what your instructions on x are and hes in Dubai. So that little question, who needs to attend, is going to be important. You need to know who needs to be sitting with you, solicitor, clerk, who from the client, if its a mother seeking custody of her children, its quite a good idea if she comes to court with you. And work that all out. Next, what evidence must I deploy in order for the relief to be granted or refused? What evidence must I deploy? Not what may be better or great for it but what do I actually have to have and from where? You know again if the client says oh so and so away on holiday this week, do we need that statement from so and so, you need to know whether you do or not or if you can get that evidence in by another route, via the solicitor or by another person on hearsay. So, is that evidence available is your next question. And next will the granting of or refusal of the relief which I think I require in my clients interests help or hinder the ultimate resolution of the dispute in my clients favour? Just let me give you an example of why I pose that as a question. Over the years Im sure Michael has been in this situation, we apply for and defend applications for disclosure, just to take an example of documents. And your solicitors say it will be fantastic if we have the following

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documents. Theres a whole room full of them in the defendants premises and it will show all sorts of things but ask yourself the question if assuming I get an order for those documents, is it actually going to make a difference at the end of the day? If its not, youve got to say, this is money which I think is going to be wasted or not well spent, we may get some where, we may find a needle in the haystack that arrives but think very carefully about it. Thats one example.

And lastly will I be able to sustain the relief which Im seeking or indeed the refusal of it if I win on refusal during the rest of the proceedings? A common problem in interim relief applications is that one gets an order which is fabulous in the early stage of a proceeding and then its hacked away for some reason or another, maybe youve got it without notice, its removed a week later with a cost order. proceedings realistically? Well there we are so those are my guiding sets of principles which I was thinking about before tonight. And now into, Im going to give you two So what can I sustain through to the end of the

anecdotes with the caveat that all advocates love their own war stories, you never use them in advocacy training but I understand you may when youre giving a lecture. But Im going to give you examples because I want you to feel yourselves living through these two experiences. They happen to be personal ones of my own and they are, what Im telling you, is in the public domain. One of the them is an ongoing case. In April last year, it was Friday the 3rd of April and it was the middle of the day, one of my instructing solicitors contacted me to say that a deal in which a

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solicitors practice and the solicitor was handling many thousands of cases, about 10,000 had been transferred to his client, my putative client. And the creditors of the practice who were banks and an insurance company who were owed millions, over 13 million pounds were threatening injunctive proceedings. And he rang me to start telling me the story. We spoke for about 20 minutes or so and I got the story from his clients perspective. There was a discussion between me and my opponent which I regret to say and this can sometimes happen over the course of Friday afternoon as a way to see whether we could hold the ring, pending negotiations between the parties or proceedings being issued.

Lesson Number 1, make sure that if you are having a confidential discussion with your opponent which I was, it is very clearly marked out as confidential because the discussion was then put into evidence by the other side in the case. I dont happen to care two hoots for various reasons but you need to be very careful to ensure that you talk, if youre talking without prejudice in order to settle you say so, if its open and youre offering undertakings, you say so. It so happens that although this came into the public domain it doesnt bother us one bit. The story as it emerged in what became some very complicated proceedings is that the solicitors practice was indebt to 13 million, it was about to be put, in fact had gone into administration that day and had been sold to my client for 2 million pounds. The creditor banks believed that they had security for their 13 million pounds and they also believed that the sale at 2 million was a sale at a significant undervalue. So what happened? Over the course of the weekend

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between a Friday and the Monday, I and my solicitor, the administrators and their solicitors, the banks and their solicitors, the insurers and their solicitors worked furiously on what we were expecting to receive as an application to freeze what had happened or set it all aside. And what they expected to obtain which was the setting aside of the whole deal and the freezing of monies. Now the first and fundamental question I think is what relief was the minimum necessary to protect the banks position and what relief would the court or might the court grant? At 7:45 a.m. on the Monday morning by this stage over 10 witness statements had been prepared for the creditors and the insurers, more than a dozen more were in preparation on the part of the applicants, we all appeared in the Chancery Division, in front of a judge who had been up since 5 a.m. but he in fact he was up several hours later than the rest of us. Now in that application, all of this is on the public record, the applicants for the injunction were seeking the restoration of the business to the administrators, in other words the reversal of what had happened in the deal. An order appointing new solicitors to run the practice, take over the 10,000 cases and the securing of all monies which had, which were then going to come in, the income that was going to come in to my client, the purchaser. Undertakings were given at 7:45 on the morning of Monday which had been volunteered before the weekend, hence the part about the conversation by the acquiring, my chap, the acquiring client that funds received in respect of cases funded by the two claimant banks and the insurers would, subject to overhead deductions, be kept securely in a client account pending the dispute. No other undertakings were given and they were given on the basis

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that that provided sufficient protection to hold the ring. Three days later the applicants came before the court again on the return day of the original application and they issued application seeking the wide relief I just described to you, directions were given for a five-day hearing with all of these parties attending on that application for relief. My client, the acquirer issued an

application for some documents to show what the financial arrangements were between these various clients, these various funders and insurers, the other sides clients. And that led to a sub-satellite piece of litigation, the court ordered those orders, the documents to be provided 20,000 down in costs to the banks just on that little escapade because it became quite a large saga. And then we are now moving on towards the interim application which was heard in June. So two months of interim skirmishing. By this stage of course the new solicitor had been running the practice, hed stayed in for 2 months and was dealing with the 10,000 cases and as we went towards the hearing in the last few days before the hearing the penny dropped on the other side that they couldnt put a new practice manager in, there was now the whole team in place and a 100 people working on these cases. So that piece of the relief was abandoned, it was abandoned actually 2 or 3 weeks before the hearing. They couldnt get the practice returned to the administrator because the administrator isnt a lawyer; he hasnt got the right to run the proceedings, so that was dropped on the first day of the hearing. And all relief to secure money beyond what the undertakings was either abandoned or the judge refused to grant any wider relief. The administrators were removed from the case because there was a dispute but they won their costs.

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Because my client had given undertakings and no more relief was granted, he got his cost order. The result of that was that there a cost order now

outstanding against the applicants for about something in the order of 600,000 of costs. The applicants have paid because there were two lots of them, the banks and the insurers about 300,000 in costs each for this massive exercise. So we are 1.2 million pounds down in cost and no further on from where we all were on Monday, the 6th of April at 7:45 a.m. Now there is some lessons to be learnt and with luck you wont be doing this in the first year of practice. But one also hopes that when youve got your forensic antennae out, you wont ever get yourselves into the position where youre going for relief which in fact the court cant grant or wont grant and you havent repaired the position and the clients have drifted on to spending these large sums of money. So ask yourself, the lesson is, what are you going to achieve to advance your clients interest and actually obtain in any application.

If youre defending an application, particularly for an injunction you go through a thinking process, 1) does the defendant have a strongly arguable case, if not, why not, 2) what are the claimants prospects of obtaining an injunction and if so in what terms, 3) what advice must I give to my defendant client on the basis of the information which I have. 4) what undertakings if any should I advise my client to give so as to protect his position but also having regard to the overall merits of the case. And if you give an undertaking, you give it without prejudice to whether or not one is could ever be obtained. So youve protected your clients position through the rest of the proceedings. A timely giving of undertakings if youre a defendant which is never bettered in the

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course of a case means as I gave you in that anecdote, the horrible anecdote means that you may come out on top at the end of the day even though your clients says, do I really have to do this.

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