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If lawyers or their clients are ever of the opinion that the Courts do not pay sufficient regard to the parties’ conduct in litigation, the judgments of Mr Justice Fraser in the long running dispute between Imperial Chemical Industries Limited and Merit Merrell Technology Limited should prove an interesting, if rather lengthy, read.
The case was perhaps most notable because the Judge’s criticism with regard to conduct was reserved almost exclusively for Imperial Chemical Industries Limited and its lawyers, Clyde & Co. Mr Justice Fraser described their evasive approach to disclosure, based upon incorrect statements and unjustified denials, as “highly regrettable”. He did not favour the witness evidence of any of Imperial Chemical Industries Limited’s witnesses of fact, concluding that the evidence was “wholly exaggerated” and “simply not credible”, to the extent that, by the time of the quantum trial, Mr Justice Fraser had decided that he would not accept any statement from Imperial Chemical Industries Limited’s main witness “without some sort of independent corroboration”.
Mr Justice Fraser considered Imperial Chemical Industries Limited’s actions from the beginning of the dispute with Merit Merrell Technology Limited were reprehensible and were designed to extract itself from its contract with Merit Merrell Technology Limited, whether there was legal justification or not. The litigation proceeded in the same vein. Imperial Chemical Industries Limited’s conduct up to the first trial in 2017 was penalised heavily in the form of an order that it was to pay Merit Merrell Technology Limited’s costs on the indemnity basis. However, its conduct in relation to the quantum trial remained unchanged.
It is not clear whether Imperial Chemical Industries Limited thought its approach to the case would be to its advantage, or whether its’ sole purpose was to cause maximum disruption and expense to Merit Merrell Technology Limited. Mr Justice Fraser had his suspicions:
“MMT are justified in being aggrieved at the way in which Imperial Chemical Industries Limited has conducted some aspects of this litigation. Given part of the discussions at the time….considered pushing or encouraging Merit Merrell Technology Limited towards insolvency, the lingering doubt remains that such an attritional approach spilled over into the litigation too.”
It could be said that Imperial Chemical Industries Limited eventually got their comeuppance as the case went against it in all respects and it has been ordered to pay considerable sums to Merit Merrell Technology Limited in respect of damages and costs. However, this took several years, during which time Merit Merrell Technology Limited had gone into liquidation, as Imperial Chemical Industries Limited had perhaps always intended.
How Can Nelsons Help?
At Nelsons, we can provide specialist advice and representation to parties throughout the adjudication process. For further information, please call a member of our Dispute Resolution team on 0800 024 1976 or contact us via our online form.