B e f o r e :
|MORTGAGE AGENCY SERVICES (NUMBER 4) LIMITED||Claimant|
|- and -|
|ALOMO SOLICITORS (a firm)||Defendants|
JOHN LARKING VERBATIM REPORTERS
Suite 91 Temple Chambers
3 - 7 Temple Avenue
London EC4Y OHP
Telephone : 020 7404 7464
Crown Copyright ©
JUDGE SIMON BROWN:
"The judge is under a duty to identify the crucial issues and to see that they are tried as expeditiously and as inexpensively as possible. It is the duty of the advisors of the parties to assist the trial judge in carrying out his duty."
That was Lord Roskill, and that reflects what is in 1.4 and 1.3 of CPR subsequently. More apposite perhaps to this case, in referring to the defendant's pleading of 66 pages, is this:
"The parties' representatives are under a duty to cooperate with the court by chronological, brief and consistent pleadings which define the issues and leave the judge to draw his own conclusions about the merits when he hears the case and to assist the judge by simplification and concentration and not to advance a multitude of ingenious arguments in the hope that, out of 10 bad points, the judge will be capable of fashioning a winner."
That is Lord Templeman, and that, in my judgment, has been the situation in this case, that the defendant's pleading has placed the court under.
'Experience in writing judgments suggests that, frequently, the parties have lost sight of the real dispute between them. It is buried in a morass of complex, long pleadings or, worse still, additionally, a great deal of evidentiary material. Very often, the most apparently complex cases distil down to one or a few critical documents or conversations, despite the mountain of other material that the parties tender or adduce into evidence by witnesses.
One early remedy that had an effect was used by the Lord Keeper in England in 1596. He ordered that a pleading 120 pages long be removed from the file because it was about eight times longer than it need have been. He ordered that the pleader be taken to the Fleet prison. His Lordship then ordered that on the next Saturday the Warden of the Fleet bring the pleader into Westminster Hall at 10 a.m. and then and there cut a hole in the midst of the pleading and place it over the pleader's head so that it would hang over his shoulders with the written side outwards. The Warden had to lead the pleader around Westminster Hall while the three courts were sitting and display him "bare headed and bare faced" and then be returned to the Fleet prison until he had paid a £10 fine – a huge sum in those days. Sir Robert Megarry said that the general present day ignorance of this case among both pleaders and laypersons "is much to be deplored" : Mylward v Weldon: Bailii citation number:  EWHC Ch 1; also inaccurately referred to as Milward v Weldon (1565) Tothill 102 [21 ER 136]: see R E Megarry, Miscellany at Law (Stevens & Sons Ltd : London) at 41
Early identification of the real issues can streamline the conduct of a case. By making each party identify what must be proved to succeed, the judge can then begin to craft orders to focus the preparation of the case on those issues. Of course, this does not always result in a narrowing of the dispute. And, in any event, the judge may have to spend considerable time before and during an initial directions hearing to elucidate the issues'.
MR SIMS: My Lord, I think that concludes matters - unless there is anything further?
JUDGE SIMON BROWN: No. I will duly go and sign the order and transmit it.