In the recent case of Warner-Lambert v Teva1, the High Court considered the principles to be applied on an application for expedited trial. This article considers the typical circumstances in which such applications tend to be made, and the principles the court will apply in deciding whether to allow an expedited trial.
- A lternative to an interim injunction. The courts will sometimes grant an expedited trial as an alternative to an interim injunction, where it considers that the requirements for an injunction are not quite met. Therefore, expedited trials may be granted in similar circumstances to those which generate applications for interim injunctions, such as trade mark or patent infringement, or enforcement of employees’ restrictive covenants.
- Following the grant of an interim injunction. Where interim injunctions are granted, the court often seeks to resolve the burden on the injuncted party as soon as possible by ordering an expedited trial. An example is the recent case of Jet2.com v Blackpool Airport 2, where the parties were in dispute over a commercial contract and whether or not it required the airport to service Jet2’s aircraft outside the airport’s usual opening hours. This dispute had resulted in severe disruption to the airline including planes being diverted away from the airport in mid-flight. As such, the court granted Jet2 an injunction, but ordered an expedited trial due to the urgency.
- Preliminary issues. If the court is asked to consider a preliminary issue, it will sometimes do so on an expedited basis. There will frequently be little or no requirement for disclosure or witness evidence in order to determine a preliminary issue, and the court takes advantage of this to minimise the delay to the hearing of the main issues.
- Impact on insolvency proceedings. The courts are alive to the fact that delay in court proceedings may prejudice a party in relation to separate insolvency proceedings (whether in the domestic or foreign courts). A good example of this is Law Debenture Trust v Elektrim3, where the defendant was subject to insolvency proceedings in Poland. The claimant sought to expedite trial, arguing that it required a judgment in order to participate as a creditor in the insolvency. Delay would mean there would be no assets against which to enforce judgment. (The application was refused, primarily on the basis that the claimant had waited almost a year to bring the application, despite knowing about the insolvency.)
- Other reasons of commercial urgency. Commercial entities usually want as quick an end as possible to litigation proceedings. However, the courts require something above and beyond the standard reasons of financial and commercial certainty, and an end to management distraction. Good examples can be found in the property industry, for example when a major development will be on hold or when a commercial landlord risks losing a major tenant if the standard court process is followed.
Principles the court will apply
It is open to any party to civil proceedings to make an application for expedited trial. The Civil Procedure Rules contain no specific provisions on expedited trials, and in the Commercial Court Guide they are covered only in the briefest term4. However, a body of case law exists which gives guidance on the principles the court will apply when a party applies for expedited trial.
This case law was summarised in CPC Group v Qatari Diar Real Estate5, and has recently been re-affirmed in Warner-Lambert v Teva6. In this case the defendant to a patent claim was bound by an interim injunction and sought an expedited trial to reduce the period for which it might be at a competitive disadvantage. The principles set out by the court are as follows:
- The general principle under the CPR is that cases are to be brought to court as soon as reasonably possible (consistent with the overriding objective).
- The issue of whether to grant expedition, and if so how much and on what terms, is a matter essentially for the discretion of the judge.
- That discretion must of course be exercised judicially; it is partly a question of principle and partly a question of practice.
- Any order for expedition involves giving preference to one case in the allocation of court time over other cases. The court therefore has a wider responsibility and must take into account the requirements of other litigants. This aspect has even more weight in relation to Court of Appeal cases.
- Therefore, the applicant must satisfy the court that there is an objective urgency to deciding the claim.
- The procedural history in any case is relevant. Delay in seeking an order is a factor which may count against an applicant. By contrast, the attitude of the respondent is not really of importance unless he can show some real prejudice to him if the trial is expedited.
- In judging whether urgency is justified, the court does not consider urgency to necessarily mean that a case needs to be heard in the immediate future. A case may be urgent in the sense that an answer is needed before the hearing date would, in the ordinary course of proceedings, arrive.
- The court should resolve timetabling in a way which is the least unjust to all the interests concerned.