Court of Appeal to consider if deception of the opposing solicitor is an abuse of process by itself
The Court of Appeal is set to consider whether an attempt to deceive a solicitor acting for the opposing party should, on its own, be treated as an abuse of process. The referral follows a High Court ruling in which the claimants who orchestrated the deception were ordered to pay indemnity costs.
The issue arises from a $415m case in which private investigators acting for the claimants approached a solicitor representing the defendants. The solicitor, who had recently become a partner, was led to believe that the investigator was seeking legal representation for a new client. During two meetings, which were secretly recorded, the solicitor disclosed information and impressions concerning the strengths and weaknesses of his clients’ litigation and settlement position. He has since been reported to the Solicitors Regulation Authority.
Stephen Houseman KC, sitting as a deputy High Court judge, previously refused an application for summary judgment based on the material obtained. He concluded that the conduct of the claimants amounted to an abuse of process and said their behaviour was fundamentally wrong. He noted that their 94-page skeleton argument contained no acknowledgement that the approach taken was unethical.
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In his latest decision, the judge granted both parties permission to appeal so that the Court of Appeal can determine broader issues raised by the case. For the claimants, permission was granted to allow consideration of whether an attempt to obtain privileged or confidential material through deception should be classified as an abuse of process even if the attempt failed or had no proven impact on the litigation. The judge said he regarded it as necessary to respond to this form of abuse regardless of its eventual evidential significance.
He observed that the Court of Appeal might take a different view, possibly concluding that such a finding should only be made once the impact of the conduct has been assessed. The claimants argue that an unsuccessful attempt to gather privileged information is not, without more, an abuse of process. Judge Houseman disagreed but recognised that the issue is one for more senior judges to resolve.
The judge also granted the defendants permission to appeal his earlier refusal to strike out the claim entirely. He noted that the Court of Appeal is better placed to weigh competing policy considerations, including whether a stronger deterrent response is required in cases involving deception of this kind.
Judge Houseman ordered the claimants to pay the costs of the hearing on an indemnity basis. He said this followed naturally from their attempt to justify conduct that he considered unjustifiable. He added that they presented their arguments in trenchant terms and offered no apology to the court for their behaviour.
The judge commented on the scale of legal spending, with combined costs reaching £1.8m for the claimants and £2.4m for the defendants. He described these figures as nothing short of staggering.