In Kazakhstan Kagazy plc v Baglan Zhunus, the Commercial Court held that there is an urgent need for commercial practitioners to bring a sense of proportion to large claims involving emergency without notice freezing orders and heavy interlocutory applications and set out various guiding principles to deal with this issue. The case serves as a useful reminder to parties that they should cooperate so far as possible to enable claims to be dealt with justly and at proportionate cost:
- The court expects solicitors and counsel to take appropriate steps to conduct the debate, whether in advocacy or in correspondence, in a way which will lower the temperature rather than raise it.
- This remains the case even where – indeed particularly where – any concession is perceived as anathema by one or other or both sides. It is perfectly possible to be vigorous without being insulting.
- Imputations on others, whoever they may be, should only be made if they are both necessary and justified. If they are not strictly necessary, or they are not objectively justified, they should be rigorously excluded. Sometimes they are necessary, for example when seeking a freezing order, or when an allegation of bad faith is necessary. They must be confined to what is necessary. As to what is objectively justifiable, regard should be had to the degree of proof that is needed. What is needed in order to support an application for a freezing order may differ from what may be required if an imputation is to be made and sustained in a different context.
- Rather than focus on criticisms of the other side, the focus should be on working out a timetable which will enable opposing parties to consider what facts and issues can be agreed, and what information and revised estimates for reading and hearing time can be given to the court prior to the hearing so as to ensure that the court’s time is used efficiently and productively.
- If it is likely that a point which might be taken by a party, or it becomes likely that a point previously taken by a party, will not significantly advance that party’s case, or will require a disproportionate amount of time or resources if it is to be resolved, then notification should be given that the point will not be relied upon for present purposes. The notification can be accompanied by an appropriate reservation as to the position in future.
Kazakhstan Kagazy plc and others v Baglan Zhunus  EWHC 996 (Comm)