Expert Witness Journal Issue 65 February 2026 - Flipbook - Page 35
not necessarily be let o昀昀 the hook to enjoy the
bene昀椀t of his own misdeeds, purely on the basis that
the other side has also acted reprehensibly.
“
That reasoning seems to have in昀氀uenced the Court’s
decision not to strike out the claim. Striking out
or staying the entire claim was considered to be
disproportionate in circumstances where there is
a decent prospect of the claimants succeeding on
their deceit claim at trial.
The Judge’s decision
The judge emphasised that “there is a distinct policy
in favour of exposing and remedying serious wrongdoing
such as fraud.”
The Judge con昀椀rmed that “the categories of abuse
are not closed”. Although CPR r. 3.4(2)(b) focuses
on abuse relating to statements of case, the
interpretation of the rule was much broader so as to
cover the circumstances of this case. The Judge was
robust in his criticism of the claimants. The conduct
was described as “abnormal and abusive”. His striking
conclusion was that they had “engaged in unethical
behaviour with a view to obtaining an unfair litigation
advantage”, so had “brought [the consequences] upon
themselves”.
The culpability of the solicitor
It is clear that X should not have divulged the
information that he did about his client’s case.
Solicitors are under a strict duty of con昀椀dentiality to
their clients, regardless of the circumstances.
However, the Court had some sympathy with the
way in which information was extracted from X. Mr
Houseman KC described how X was “skilfully and
tenaciously” steered into discussing various aspects
of the litigation and settlement strategy of his
clients. The questioning was “designed to pressure the
interviewee into privileged and con昀椀dential territory.”
Despite that, rather than striking out the claim,
the Court considered that a more proportionate
response would be to strike out the claimant’s
summary judgment application, and (absent
compelling argument) for there to be an adverse
costs order (likely on the indemnity basis).
The claimants argued that there ought to have been
a “nil return” from the questioning if X had complied
with his professional obligations. However, the
intention behind that submission was directed at
the claimants’ assuming no responsibility for the
investigator’s actions. This was 昀椀rmly rejected. The
Judge did not accept that X “would have provided the
same information to a genuine potential new client”.
It is perhaps surprising that strike out was not the
outcome given the seriousness of the conduct. The
Judge alluded to this in one of his closing remarks,
saying that he was concerned that he had been too
lenient on the claimants. In any event, this was one
of the reasons why an appellate court would be
interested in the issues raised by this case.
The claimants’ conduct
Separate to any appeal, there will be an additional
‘Information Review Hearing’ to decide the
evidential status of the illicit information.
The Court’s ire was largely directed at the claimants.
First, the Court considered it noteworthy that the
process leading to the extraction of information
remained “opaque”, and that the claimants had failed
to deny the extent of their own role in targeting X to
extract sensitive intelligence from him. The Court
was “left with the distinct impression that [the claimants
were] choosing to hide details”.
Comment
If proceedings continue, this will be a di昀케cult claim
for the parties, and for the Court to manage. It is
unclear how there can be a fair trial. The claimants
cannot have their illicit knowledge erased or
reversed. As Judge Houseman KC said “there is no way
of policing its invidious or invisible in昀氀uence upon their
litigation or settlement strategy day in day out.”
Second, there was no evidence to suggest that the
claimants were “shocked or surprised” to receive the
fruits of the covert operation. On the contrary, they
sought to make use of the illicit knowledge in their
summary judgment application, which the Judge
said “compounded” the abuse.
The claimants’ tactics were clearly inadvisable, but
they seem all the more unusual given the apparent
strength of their case.
The unusual circumstances of this case shine a light
on nefarious practices that some litigants will deploy
in order to gain an advantage in litigation. The
Court acknowledged that, whereas there are clear
procedural rules in place to remedy inadvertent
Although the conduct was not found to be unlawful,
it was unethical. The Court was damning about
the behaviour and considered it to be an abuse of
process:
EXPERT WITNESS JOURNAL
It was something that should not happen and it
cannot be countenanced by the Court. The use of
unethical methods to target an adversary’s solicitor
in the hope of extracting sensitive information or
insights from them is anathema to the norms and
values of civil litigation. It is cheating the system with
a view to undermining the level playing 昀椀eld which
the Court strives to maintain between opposing
parties. It o昀昀ends justice.”
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FEBRUARY 2026
