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He who hesitates is lost

Consider yourselves duly warned.

Listing hearings can be tricky. You need to find a time the Court can fit you in. You need to squeeze it into your hectic diaries without upsetting other clients who firmly believe that theirs is the only case you have on right now. It needs to be a time that your busy barrister and the other side’s busy barrister can make.

At the same time, during complex and hotly contested litigation, issues constantly arise which have a habit of lingering and growing. It can be difficult, both tactically and objectively, to know when, for example, a disagreement over disclosure or the slippage of time for exchange of expert reports, has reached the point when you would be best placed to force the issue at court.

Faced with such pressures, it can be a relief to see the Pre-Trial Review date approaching. It was a date set long ago and to which everyone is already committed. A PTR is meant to address all the matters necessary to ensure the case is ready for trial. What better time to resolve all those festering problems without needing to go to the trouble and cost of arranging an additional hearing date? Whilst one can see the rationale for such an approach, do not expect the TCC Judges to share your enthusiasm.

It’s listed for an hour for a reason

In the recent case of Mueller Europe Ltd v Central Roofing (South West) Ltd [2012] EWHC 3417 (TCC) Coulson J took the opportunity to emphasise that this is not what the PTR is for.  In doing so he was echoing the comments of Akenhead J in Omni Laboratories Inc v Eden Energy [2011] EWHC 2169 (TCC). Taken together they provide a stern warning to parties not to use the PTR to resolve other important procedural applications.

The starting point is the TCC Guide. Paragraph 14 deals with the PTR. Unsurprisingly, the Guide envisages the PTR having to address any outstanding directions. However, not only is there a warning that such matters are likely to result in an order requiring prompt compliance and a payment of costs, the Guide is also generally unenthusiastic about such applications troubling the Court at the PTR.  Section 14.3.2 sets out as follows:

“Sometimes a party will wish to make an application to be heard at the same time as the PTR. Such a practice is unsatisfactory, because it uses up time allocated for the PTR, and it gives rise to potential uncertainty close to the trial date. It is always better for a party, if it possibly can, to make all necessary applications well in advance of the PTR. If that is not practicable, the court should be asked to allocate additional time for the PTR, in order to accommodate specific applications. If additional time is not available, such applications will not generally be entertained”.

It is now clear that, as far as the TCC Judges are concerned, parties will not avoid criticism even if they make clear arrangements in advance for the PTR listing to be extended so as to provide sufficient time to address all outstanding matters. Indeed, their decision to do so might impact on the substantive decisions reached by the Court.

Akenhead J was the first to air his views, in the July 2011 case of Omni. It is worth pointing out that the 2-3 week trial was not listed until 7 November, so the PTR was taking place over 3 months before the trial, albeit with the summer break in between. In that case, at “the 11th hour” the Defendant issued an application for specific disclosure and to strike out 50 paragraphs of the Claimant’s witness statements. The Defendants, one might think more in hope than expectation, stated the application would require only 1 hour and sought to have it heard at the same time as the PTR.

In the event, the parties were able to agree most of the trial preparation issues and, due to the time constraints, agreed to adjourn the application regarding the witness evidence. The Judge managed to address the disclosure issue by extending the time to over one and half hours. The Judge was not impressed:

“I cannot emphasise enough to practitioners that it is wholly inappropriate to seek to use the pre-trial review, unless there is more than adequate time, to take on important applications which one or other party wishes to make. Of course, it must be for either party to make any application which it believes it is entitled to, but it is quite wrong, generally, to seek to use the pre-trial review as a vehicle to do that. I have to say that, although we have been able to deal in the extended time available with one of the applications put forward by the defendants, we have not had time to deal with the other application, I wish very much to encourage practitioners and parties who use this Court to take out specific applications with specific application times for their applications to be heard and not try to tack them onto the pre-trial review. There may always be exceptional grounds for seeking to do so, but I have to say in this case no such exceptional grounds exist.”

Whilst the Judge’s ire was clear, it was primarily focussed on the practical problems of finding time to deal with the application. In the November 2012 case of Mueller, Coulson J was clear that this was not the key concern. In that case the PTR was on 23 November with the trial due some 7 weeks or so later, this time with the winter break intervening. The Judge was faced with 7 separate applications concerning pleadings, disclosure and evidence.

However, the parties had recognised the logistical issues and had managed to secure a full day to address all the matters arising. If the parties thought this would win them the thanks of the Court, they were to be disappointed. Under a heading entitled “OVERLOADING THE PTR” (the capitals, bold and underlining are not mine), Coulson J commented that:

“The second issue of wider application is the tendency for parties to overload the PTR with a wide variety of other applications. Here, the matters relevant to the PTR itself took no more than 30 minutes of court time. The rest of the day was concerned with other issues altogether. Whilst a few of these could perhaps be said to have arisen recently, many more of them arose weeks, if not months ago, and could, and should, have been the subject of separate applications in September or October. There is a tendency amongst solicitors to wait until the PTR, because that is a date already fixed with the court, and then try and have a wide-ranging catch-up session at that late stage.

Such a process is fraught with danger for two obvious reasons. The first is that, as here, it can be impossible to deal with all of the interlocutory applications, and the PTR issues, and the costs disputes, and the summary assessments, at one hearing. The second is that, if interlocutory matters are left as late as the PTR, then the outcome of a particular application may be different to that which would have eventuated if the application had been made earlier. If all parties want to keep the trial date, then an application that is left until the PTR will inevitably be decided against that background; that may mean that relief is refused (because of the proximity of the trial date) when in other circumstances it might have been granted.

Obviously, this is ultimately a matter of fact and degree. But the fact that there were seven separate interlocutory disputes between the parties in this case, two of which took over an hour each to argue and which have led to this reserved judgment, make plain that the parties ought to have addressed these issues much earlier than the PTR”. (emphasis, this time, added)

Indeed, Coulson J’s attitude to the PTR was clearly evidenced by the language he used. He described the 7 applications as having “nothing to do with the PTR itself” and that, as set out above, the “matters relevant to the PTR itself”, presumably concerning trial management, took only 30 minutes. In other words, he considered that the PTR should be concerned with the agenda for trial and for assisting the Court in narrowing the issues and deciding upon the best way for those issues to be resolved. Resolving outstanding directions were a distraction from that task.

"Fact and Degree"

As Coulson J recognised, the issue is as ever a question of fact and degree. One might very well start from the proposition that by the time of the PTR all substantive procedural issues should have been resolved, but that is plainly not always the case. With PTRs often being listed for 6-8 weeks or more in advance of trial, it is not that unusual to find lay or expert evidence still to be exchanged or schedules of loss still being finalised. Even where the timetable has not slipped, or has not been revised, disagreements over issues such a disclosure are often bubbling away in the background.

One might think that, in such circumstances, as long as adequate time is set aside, the PTR provides a far better forum to resolve those niggling outstanding issues rather than requiring the parties to ramp up for 2 or 3 discrete skirmishes, sometimes only a week or two prior to the already listed PTR.
We will need to trust to the common sense of the TCC Court, which, quite properly, is keen to case manage cases according to the ordered timetable.

Whilst no doubt there will be cases where the Court will recognise the sense behind dealing with additional applications at the PTR, practitioners should not aim for that eventuality and, if that is where they find themselves, should come to Court armed with a convincing explanation. As Coulson J made clear, the consequences of getting this wrong may not only sound in damages; it could impact on the result of the application itself.