Judge cautions against late requests to dispense with an oral hearing for a CMC in the Commercial Court


Case Management Conferences are mandatory in the Commercial Court and TCC. The Commercial Court  Guide advises that the general rule is that there must be an oral CMC at court. However, section  D8.3 of the Commercial Court Guide provides that “there are cases which are out of the ordinary  where it may be possible to dispense with an oral hearing if   the issues are straightforward and  the costs of an oral hearing cannot be justified”.

In this case, the day before a scheduled CMC, the parties sent a joint letter to the court listing  officer advising that the parties had reached agreement on the list of issues, case memorandum and  a draft order as to the pre-trial timetable. They therefore asked whether attendance at the CMC was  required.

Walker J said that this letter “demonstrated a failure on the part of all concerned to appreciate  the role and importance” of the CMC. The parties had also failed to comply with key aspects for their request as set out in section D8.3. They had failed to provide a confirmation from each  advocate that the parties   had considered all relevant issues and, crucially, they had failed to  lodge all the appropriate documents “no later than 12 noon on the Tuesday of the week in which the  CMC is fixed for the Friday”. The judge said that an out of time request to vacate a scheduled  hearing “is misguided and may result in sanctions”, unless there is a good reason for the late request. Furthermore, a failure to lodge on time will  “ordinarily” result in the CMC going forward to an oral hearing.

The sanction which the judge had had in mind in this case was an order that each side should bear  its own costs of the CMC  (the court normally orders that the winner of the eventual trial will pay  for the costs of the CMC). However, as an “act of mercy”, he chose not to make such an order here.  Although he stressed that nothing in the judgment was intended to dissuade proper requests for a  paper CMC, he emphasised that those “who make out of time requests to vacate a case management  conference  in the Commercial Court should not assume that they can do   so with impunity”. He also  urged parties to “think again” if they think that costs might be saved by an out of time request  for a paper CMC: “The best working assumption is that the benefits of an oral case management  conference will more than justify the costs involved”.