It is wholly inappropriate to seek to use a pre-trial review as a vehicle to tack on important applications which one or other party wishes to make, unless there is more than adequate time. The Claimant claims the outstanding balance for the work which it did with regard to gas content analysis and permeability testing in respect of three wells in South Wales. It is met by a substantial counterclaim in which the Defendant alleges that the work and services provided by the Claimant were deficient.
The pre-trial review was fixed some time ago and was listed for one hour. It was specifically timed to take place before the summer vacation so that final preparations for trial could be made – the trial being listed to start on 7 November 2011 for 10 to 12 days. However, at the eleventh hour the Defendant issued an application, which sought two distinct things:
- Specific disclosure of further documents, which are said not to have been disclosed or about which there is no adequate explanation.
- To strike out approximately 50 paragraphs in five witness statements which have already been served by the Claimant.
The application stated that it would require a one hour hearing and it was clearly intended it should be listed at the same time as the pre-trial review.
Sitting in the TCC, Mr Justice Akenhead ruled that, unless there is more than adequate time, it is wholly inappropriate to seek to use the pre-trial review to tack on important applications which one or other party wishes to make. Akenhead J stressed: “I wish very much to encourage practitioners and parties who use this Court to take out specific applications with specific application times for their applications to be heard and not try to tack them onto the pre-trial review.”
The Court was amenable to letting the hearing run over by 30 minutes and was able to deal with the pre-trial matters and the first part of the application (specific disclosure). However, the second part of the application (witness statements) was adjourned to the first day of trial. Akenhead J warned the Defendant against proceeding with the application as time at trial should be used for “getting on with the case”. He also emphasised that he did not consider that either application represented “exceptional grounds” to add on to the pre-trial review.
Akenhead J further emphasised the importance of proportional costs of such applications. He criticised the size of the application bundle - some 380 pages (of which three-quarters was not referred to in argument) and the length of the witness statement in support of the application.
This case highlights that only in exceptional instances should parties seek to have an application dealt with at the same time as the pre-trial review. In the normal course of events, they should give proper consideration to the bringing of applications. Parties should respect the intended purpose of the pre-trial review and be mindful of ensuring proportional costs.
As practitioners, we frequently encounter the situation where a claimant seeks to add other matters to the pre-trial review, including those which seek to make significant changes to his pleaded case. This case is, therefore, a useful addition to the defendant’s armoury in resisting such last minute attempts.