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”.