In the very recent case of Elliott Group Limited and Others v GECC UK (formerly GE Capital Corporation and others (EWHC 409 (TCC) 010) the courts have reconsidered the grounds for allowing parties to litigation an adjournment:-
(a) to deal with more extensive disclosure; and
(b) to participate in ADR
In Elliott Group Limited the applicants (E) sought an adjournment of their trial (which had been fixed for July 2010) against the respondents. E claimed that the trial should be adjourned and that there should be a new timetable which would lead up to a new trial in October 2010. E said that they had underestimated the amount of documents, particularly electronic material, which they were likely to have in their possession. They also said that a delay to the trial would allow a structured ADR to take place.
When considering an adjournment, Mr Justice Coulson said that the court must consider the overriding objective CPR 1.1 as to whether;-
- the parties are on an equal footing
- the case is dealt with proportionately. expeditiously and fairly; and
- a proportionate and appropriate share of the court's resources is allocated to the case
and as to whether it may be necessary to grant an applicant's request for an adjournment, Mr Justice Coulson said that the court must consider:
- the parties' conduct and the reason for the delay;
- the extent to which the consequences of the delays can be overcome before the trial;
- the extent to which a fair trial may have been jeopardised by the delays;
- the consequences of an adjournment for the claimant, the defendant and the court
Mr Justice Coulson said that it would require a very strong case for a trial to be adjourned merely because a party's disclosure was a more extensive task than was originally contemplated – no such case existed. Where a party is aware that disclosure is going to be an extensive exercise, any delays could be ameliorated by the devotion of greater resources to the task.
Further, the opportunity to allow parties to litigation to settle a case was not in itself a good enough reason for an adjournment of a fixed trial date. Once started, court proceedings have to be brought to a conclusion as expeditiously and cost-efficiently as possible. It is not cost efficient to delay a trial or the process leading up to it on the basis that if the parties were granted a bit more time, they might settle the case. Mr Justice Coulson said that effective case management requires the court to do not only what it can to facilitate the ADR process but also to recognise that, despite their good intentions, the parties may fail to avail themselves of a settlement opportunity and that a trial may be necessary after all.
Although ADR might lead to settlement, ADR could just as easily be used as a "stalling tactic" as in this case, an argument designed to secure the claimant more time to comply with directions. Here, the judge was keen to adhere to the tight timetable and the avoidance of a loss of a trial date. It was therefore held that the case could properly and fairly be prepared in the time remaining before the fixed trial date.
Therefore it can be seen that the court is faced with a balancing exercise between the obvious desirability of retaining a fixed trial date (promoting certainty) and avoiding any adjournment (which only leads to increased costs of the proceedings) and on the other hand the risk of irredeemable prejudice to one party if the case goes ahead in circumstance where one party has not had proper or reasonable time to prepare its case. Although ADR is encouraged, it can be engaged in conjunction with, rather than in priority to, compliance with the court's directions.
This article is jointly written by Tim Constable and Justine Ash
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.