Queen’s Bench Division
Published October 20, 2009
Earles v Barclays Bank plc

Although there was no duty on parties to preserve documents before proceedings commenced, after that the situation was radically different.

Judge Simon Brown, QC, sitting as an additional Queen’s Bench Division judge at Birmingham District Registry, so stated on October 8, 2009, in dismissing the claim by Timothy Duncan Earles against Barclays Bank plc.

HIS LORDSHIP said that this was the type of action between a customer and his bank that had become increasingly prevalent in the mercantile court during the economic downturn and banking credit crisis.

Over 90 per cent of business documentation was now in electronic form and was subject to disclosure under rule 31.4 of the Civil Procedure Rules and paragraph 2A of the Practice Direction thereto.

In a short trial of a simple factual issue, the fair award for costs for a successful defendant with in-house counsel who had failed to disclose material, particularly electronic material, relevant to the primary issue in the case and which instructed disproportionately expensive lawyers to represent it, was only 25 per cent of its costs.

It would have been preferable if costs management had been applied during case management and at the case management conference, following the example set in the pilot scheme at Birmingham District Registry as part of the Review of Costs in Civil Proceedings by Lord Justice Jackson, to control costs before they were spent.

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