Advocacy Notes
Draft
AS advised that, under English procedural rules, the Court was obliged to deal with cases ‘justly’ and at ‘proportionate
cost’. AS and GA considered that VdS had been entirely reasonable throughout this process.
The last mediation was only held very recently (7 September 2020). It lasted a full day and all the issues were discussed
at length between the parties. As far as VdS is concerned, there has been no significant change since then.
GA went on to explain that he did not want to come to a second mediation. The parties had already discussed the issues
fully, only a few days ago. The last mediation was in London and it would be a “big hassle” for GA to return to London so
quickly. The costs of attending the first mediation had been approximately £3,200. The costs of attending a second
mediation would be similar. This money could be put to better use working on the case; AS had confirmed previously
that the costs of carrying out disclosure and inspection would be approximately £3,400.
Your client, VdS, is based abroad. It will cost a considerable amount to attend a second mediation.
VdS had not yet instructed its own expert (because of the stay) but will do so as soon as the stay is lifted. This is highly
likely to support VdS’s defence and counterclaim.
AS explained that VdS could not comment on this, since it had not seen the report yet and this was the first time that
VdS has heard of it. The defendant had, in any event, analysed the silk itself before finalising its defence and
counterclaim. On this basis VdS is likely to have a full response to any expert report (and will be instructing its own
expert with regards to this issue as soon as the stay of Ignited’s claim is lifted).
Your client is keen to try to recover the large amount of money owing under the Contract. It is not, therefore, prepared
to delay proceedings any further.
1) Master my second submission deals with the over-riding objective.
Must deal with this matter justly, and master you must be aware that this means you must deal with the matter
proportionately, expeditiously and on the basis that the parties are on an equal footing.
Defendant- large international company. The amount outstanding on the other hand is a lot of money to a company
such as the claimant and it is vital for the survival of the claimant because the Claimant is only a small company,
specialising in the supply of computer components and it cannot survive without this money.
Extremely important that payment is received pursuant to the contract.
Master, for all of these reasons I ask the court to refuse the defendant’s application.
Replies
- Mediation can be done remotely- does not have to travel
Also, there was no way that GA would be prepared for the mediation to take place ‘remotely’ – if any mediation took
place, GA would want to negotiate ‘face to face’. AS confirmed that, in his experience of mediations, this was
reasonable.
- Over- riding objective
It would be in accordance with the over-riding objective for the defendant’s application to be dismissed. The civil
procedure rules are designed to ensure that parties act reasonably in exchanging information btw each other in order to
avoid going to trial. The defendant has not acted in accordance with this and has not acted appropriately. Stark contrast
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, with how claimant has acted because the claimant has during all of these proceedings tried to comply with CPR and all
its obligations throughout the proceedings.
Questions asked
- Agreement to a mediation at any point of time
GA agreed that he would perhaps consider a second mediation after: (a) disclosure and inspection had taken place; (b)
after he had seen Ignited’s expert report; and (c) after an expert had been formally instructed by VdS. Until that time, a
second mediation would be “pointless and inappropriate” since there had been no significant change of facts.
Amount in dispute
VdS’s invoice, worth £232,200 (excluding VAT), is still outstanding
VAT to be charged @ 20%
Introduction
Good afternoon Master, I am Alex Stubbs representing the defendant VdS.
Master, the claimant’s application is opposed by the defendant.
Before making my specific submissions Master, I would actually like to make a more general submission concerning
the claimant’s behavior. Claimant has generally been a poor communicator whereas the defendant has completely
complied with spirit of pre action protocols.
According to CPR Rule 1.3, parties should act in accordance with the over-riding objective, the defendant has done
so throughout the case and even agreed to attend a mediation as a method of trying to resolve and settle the
dispute.
Chronology Background
Master if I could refer you to the chronology, payment was to be made to VdS within 28 days of VdS delivering an
invoice to Ignited, with interest payable after that time. However, Ignited failed to pay VdS and after extensive
correspondence between the parties Ignited issued court proceedings on 21 May 2020.
An acknowledgment of service was filed soon after on 4 June 2020, indicating an intention to defend the claim. A
defence and counterclaim were filed by VdS on 22 June 2020 as well. The case management conference (‘CMC’)
took place on 27 August 2020 where the Court ordered a one month stay of the proceedings. A mediation was then
attended by the parties and their solicitors on 7 September 2020.
An additional four-week stay of the proceedings was proposed by Ignited which was denied by VdS. Master you can
hereby see through a brief view of the chronology that the defendant has pushed every deadline that it has faced
and has failed to properly explain his behavior.
Opening Submissions
1) There is no good, clear and justifiable reason for extending the stay of proceedings as proposed by the
Claimant.
Last mediation that took place between the parties was only held very recently- as referred to in the chronology on
7 September.
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