In a recent group action case, Mr Justice Fraser refused to take account of counsel's availability when fixing hearings in the proceedings. He even took the unusual step of issuing a written judgment with reasons on the basis the issue was likely to arise again.
Acknowledging that counsel of high repute "are extremely valuable in the marketplace and have many potential clients", the judge also recognised that senior counsel "all work extremely hard and it is a function of the independent Bar that they will usually have multiple cases underway simultaneously". While it was regrettable for one party to be deprived of its counsel of choice because of the date of the listing, it was not unusual. Provided reasonable notice is given, a replacement could be found.
Fixing court hearings around the diaries of busy counsel, rather than their fixing their diaries around the case, was a fundamentally wrong approach. When carrying out their case management functions, the courts cannot park a case indefinitely while the parties or their lawyers attend to other matters. Such an approach would lead to unacceptable delay and additional costs: delaying hearings must be avoided. Hearings would be fixed well in advance so that counsel would know when they were taking place and plan accordingly.
While this was not a construction case, the clash of court/counsel diaries is an issue that can affect complex, high-value cases such as those found in the Technology and Construction Court. Parties who instruct busy Queen's Counsel (QCs), and even senior juniors, should be aware that their unavailability for hearings or the trial is unlikely to be a good reason to delay the listing.