Chop, chop

Mr Justice Jackson must wake up in a cold sweat thinking about Multiplex and Cleveland Bridge, because every time he thinks the hydra of litigation has been slain, another two heads pop up

“The Hydra slaughter began this month. The judge is determined to get it all to a done deed. So was Hercules, but even now it is growing more heads”

We’ve had judgments in Multiplex vs Cleveland Bridge, then Multiplex vs Cleveland Bridge, then Multiplex vs Cleveland Bridge, then Multiplex vs Cleveland Bridge. And lo! Here in front of me is another judgment in Multiplex vs Cleveland Bridge. And just between thee and me, I think that the judge, Mr Justice Jackson, is a smidgen put out. Oh, not that he says so directly. He says the opposite: “It is the wish of the parties that this court should, in effect, value every piece of steelwork in Wembley stadium and every item of damages from the Scott Schedule. I cheerfully undertake this task, because that is the parties’ wish and because the parties are entitled to the decision of this court upon the matters in issue.” See, told you the judge is cheerful.

But still I reckon he’s secretly put out. As he says himself: “Managing the Multiplex vs Cleveland Bridge litigation is a Herculean labour”. Poor old Hercules, despite being the greatest of Greek heroes, he had to suffer a penance of 12 labours. But he, too, cheerfully undertook his task. Labour number two is how Mr Justice Jackson describes this Multiplex vs Cleveland Bridge litigation. He, like Hercules, is trying to slay the Lernaean Hydra. That was an ancient serpent-like water beast. Let the judge explain: “It will be recalled that each time one head of that grim monster was chopped off, two new heads popped up … just so the present litigation; every time the court cuts off one head of the dispute by deciding a preliminary issue, at least two new heads of dispute pop up.” And he adds: “The Hydra must be slaughtered.”

Cleveland’s £60m subcontract was to design, fabricate, supply and erect the structural steelwork for the stadium. Disputes arose. Relations soured. Five adjudications took place. Subcontractor and main contractor parted company. Litigation began. Back to Mr Justice Jackson: “Two years ago … I ventured to suggest … the parties may wish to seek a commercial resolution of the quantum issues. With a bit of goodwill on both sides and with the assistance of their advisers or a skilled mediator independent of the court, the parties should be able to sort out for themselves all matters of valuation.”

But it didn’t happen. “If that suggestion had been heeded, this litigation could have been brought to a fair and reasonable conclusion during 2006 at a cost which was proportionate to the sums in issue.”

Anyway, the Hydra slaughtering began this month and is set to run for three months. And the judge is determined to get it all to a done deed. So was Hercules, but even now the dispute is growing more heads. Cleveland now comes to court to seek permission to value its steel work by a different method. The amendments will add well over £1m. Multiplex says there is no time left to answer that claim, as it could torpedo the trial.

Do you see the dilemma for the judge? Cleveland Bridge will be aggrieved if it cannot bring its case. Multiplex will be aggrieved if it has no time to investigate and answer the revised case. The court will be aggrieved to lose the trial date. So the judge wrestles. He has a duty to save expense while dealing with the case in ways that are “proportionate” to the money involved and to the importance of the case and complexity of the issues and to the financial position of each party, and allot an appropriate share of the court’s resources while taking account of the need to allot resources to other cases. Well, said Mr Justice Jackson, “in the context of litigation which has been rumbling on for four years at disproportionate cost … this requires some firm case management.” He was not prepared to let in the changed claim.

Upon reaching the swamp where the Hydra dwelt, Hercules covered his mouth and nose with a cloth to protect himself from the poisonous fumes and fired flaming arrows into its lair to draw it out. He reached for a burning firebrand to scorch the neck stumps after decapitation then used the venom to burn each head. The Hydra was dead. Counsel for Multiplex vs Cleveland Bridge in the front row below the judge ought to watch out for sickles, firebrands and venom. Hercules might turn up.

Readers are invited to forward recent judgments for reporting in this column (with full acknowledgement) to: Tony Bingham, 3 Paper Buildings, Temple, London EC4Y 7EU. DX: 37164 Biggleswade

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