The judgment, written by Lord Justice Ward, is both pithy and witty starts with with the statement that solicitors should carry a similar warning to cigarettes, in respect of their costs.
Following litigation between the Bank and Hedrich a consultant relating to billing, the bank sued Hedrich for costs, due to the failure to disclose information/data on time.
In the case it was clearly shown that there was a failing to disclose on time, with multiple lists of documents produced, disclosing documents. Lord Justice Ward even described the original trial and disclosure as a “shambles” putting some the blame with the solicitors, Zimmers and some with Hedrich. The main problem revolved around the failure to disclose a CD of data that Zimmers had in their possession but denied/forgot they had.
Below is an except from the judgment in the court of appeal showing the chaos of the disclosure:
24) On 18th May 2005 Master Leslie gave directions for standard disclosure by list by 30th June, subsequently extended by agreement to 7th July, with the trial to take place in the Michaelmas term 2005. The claimant’s list was dated 21.6.2005 and simply listed six categories of documents including “documents relating to letter of credit in favour of Metis and related documents”. There was no reference to missing e-mails. In response to a complaint about the deficiencies in relation to that disclosure Zimmers sent a revised and expanded list dated 22nd July containing 123 documents but there did not appear to be any further documents relating to Metis. This led to a further protest about deficiencies with the disclosures. Mr Zimmer said he would see his client in Germany on 16th August but that had to be postponed until the end of the month. This should have given him the chance for a thorough investigation of his client’s documents, both those electronically stored and those on paper. Even after that visit, the revised list dated 13th September contained 171 documents, only some of which related to Metis. When it was pointed out to him that some of these documents referred to enclosures which were not themselves disclosed, Mr Zimmer said he would review the matter.
25) In his evidence filed in his application to come off the record, Mr Zimmer revealed (though why this privileged information was disclosed is unclear) that there was a conference with counsel on 3rd October when the claimant gave instructions that he had not acted for third parties or otherwise in breach of the consultancy agreement. We do not know much more than that about what took place on that occasion.
26) The Bank sought an adjournment on grounds that the claimant’s disclosure was incomplete, the case was not ready and the time estimate was too short. The Bank indicated that they had become concerned to make wider enquiries into facts and matters until then unknown to the Bank, particularly the claimant’s dealing with a Mr Tusder which might have been in breach of the Agreement. They gave notice of the possibility of a counterclaim to plead repudiation. The Bank also stated that it intended to disclose further documents – “we envisage a significant amount of further documentation will be produced once the Bank’s further diligent and rigorous enquiries are complete.” I mention this because in an appeal wholly based on Zimmers’ failures, there may be, I say no more, a little element of the kettle calling the pot black, at least at this stage in the litigation.
27) Silber J. refused to adjourn the matter and ordered on 21st October 2005 that there be mutual supplementary standard disclosure by 4 pm on Friday 4th November 2005 in relation to the issues to be tried at the hearing set to commence on 21st November 2005. Such disclosure was to include the provision of e-mails and other documents relevant to the issues.
28) A few days later Mr Zimmer met with the claimant and Mr Kaul in Hamburg. His priority was to finish the claimant’s witness statement. During the visit Mr Zimmer was shown a mass of documentation contained in clear plastic wallets piled on the claimant’s desk, floor and other furniture. On looking through some of this material it appeared to him that all of these papers related to matters before the period of the consultancy or after its expiry and for that reason he did not consider them to be relevant in the action. Whilst there he took instructions from Mr Kaul because he had been told by the claimant that Mr Kaul had managed to retrieve all of the T-Online e-mails from the claimant’s computer. He took a witness statement from him which was served in the trial and Mr Kaul was called as a witness. Mr Zimmer was told by Mr Kaul that he had copied the complete hard drive from Mr Hedrich’s computer onto his, Mr Kaul’s, laptop, including the e-mail files which he had been able to open using T-Online software.
29) On 4th November 2005 both parties gave the supplementary disclosure pursuant to the order of Silber J. Zimmers also served a witness statement of Mr Kaul and a CD Rom entitled “e-mail correspondence claimant-defendant”. (This is not the Kaul CD Rom.) In a letter of 8 November Zimmers wrote:
“3. We have taken instructions again and our client confirmed that the e-mails we have disclosed in this cd-rom are the only ones our client has on his system relating to METIS. We hope to receive by fax today the e-mails as our client prints them out in Hamburg and sends them to us by fax. This should show the date and time of the original e-mail.
4. At the outset our client was not able to access the e-mails which were later recovered. As far as he was concerned they were gone. That is the basis of his original instruction to us. You are welcome to cross-examine him on this point at trial if you wish.”
Later about 1600 hard copy pages were delivered in four arch lever files.
30) Such was the muddle and confusion over disclosure and what was an original document and what was a copy that the trial which had been fixed for 21st November had to be adjourned, with both parties being given permission to amend. On 24th November the Bank for the first time pleaded the case on which they eventually succeeded, namely the repudiation by the claimant working for others in conflict with his duties to the Bank. Unusually, but understandably in the light of that confusion, Mr Zimmer was ordered on 29th November, the second day of the trial, to file an affidavit stating with precision in relation to each document when it arrived, how it was dealt with and how it was disclosed.
The judgment went on to say that
” The disclosure given by Mr Hedrich may have been defective, as was conceded. But that is not the issue. The issue is whether Zimmers were clearly and obviously in breach of their duty to the court to ensure that the client properly discharged his duty to give proper disclosure.”
The issue for the Bank was their action blamed Zimmers, and as the judge implied on several times Zimmers did appear to be at fault. However in the preceding case the Bank had gone to great lengths to demonstrate that Hedriech was not a reliable witness resulting in the following problem.
“The supreme irony of the Bank’s case [is that]…. [t]he Bank spent days successfully cross-examining Mr Hedrich up hill and down dale, not just on the curiosities of his disclosure but of essential conflicts between him and his witness Mr Tusder. They painted him to be a liar and they were successful in that endeavour. In doing so they have destroyed Mr Hedrich’s credibility and they cannot in those circumstances succeed in establishing as a strong prima facie case that his word should be preferred to that of Mr Zimmer, a solicitor of the Supreme Court. ”
Therefore while Zimmers had failed to disclose the document, and there was a “shambles” in the production lists, the court stated that:
“I am not satisfied that Zimmers were negligent at all. They produced the [missing data] when its relevance was reasonably obvious. By then all the costs had been incurred and causation is not established.”
A brief summary of the cases, is also available at 7 Bedford Row
- The Bank lost its appeal against a refusal by the Judge at first instance to make a wasted costs Order against Zimmers.
- He stated on disclosure that document had been lost. In fact they had been retrieved by an expert and placed on a CD Rom 9 months before the trial and 5 months before Disclosure.
- The solicitor had been told of the existence of the CD then but he did not receive a copy until shortly before trial and did not then examine it
- He did not realise that it contained relevant documents and disclose them until the 3rd day of the trial.
- The Court held that the issue was whether Zimmer was clearly and obviously in breach of his duty to the court to ensure that the client properly discharged his duty to give proper disclosure
- Given the difficulties in reading the CD ROM and given the reasonable expectation that it contained nothing which was material, it was not negligent to have left this unopened until information at trial made its relevance plain.
- By then all the costs had been incurred and thus causation was not established