REMEMBERING THAT CASE MANAGEMENT HAS A POINT AND PURPOSE: A WORKING EXAMPLE OF PROBLEMATIC PREPARATION

Mediatelegal

In the furore that now surrounds civil procedure it is often forgotten that the rules of civil procedure are a means to an end. That end being that there IS a fair trial on the disputed issues between the parties,. With those issues being clear in advance and the trial being conducted as economically as possible.

PROBLEMS WITH CASE MANAGEMENT

It is always interesting to look at those cases that slip through the net and where judges comment on the case management process.  This occurred in the judgment in Wemyss –v- Karim [2014] EWHC 292 (QB). The case related to issues following the sale of a solicitor’s practice. One issue between the parties related to the increased indemnity premiums payable as a result of undeclared claims against the practice.  HHJ Judge Cooke (sitting in the Mercantile Court) observed:

“10. These issues have been dealt with in a somewhat unfocused way in the pleadings and evidence. The preparation for trial of the defendants, in particular, has been far from ideal. On 29 March 2012 His Honour Judge Brown QC made an order permitting single joint experts in insurance (as to whether any increase in premiums was attributable to the claims made) and accountancy (as to the amount of additional consideration due by reference to debtors and work in progress, and the rate of profitability at dates relevant to the pleaded representation). It does not appear that at any point the parties sought permission for evidence as to the value of the LLP absent the alleged misrepresentations and breaches of warranty, despite the obvious relevance of such evidence. Although the parties identified experts to provide the insurance and accounting evidence, no such evidence was in fact obtained.

11. On 19 October 2012, on the basis of the claimant’s complaint that the defendants had not proceeded with instruction of the experts and had not served any lay witness evidence, HHJ Brown made a further order debarring the defendants from calling any lay or expert evidence at trial, which was then just over a month away. I was persuaded on 9 November 2012 to set aside that order, adjourn the trial and set a new timetable for provision of expert evidence. That too was not complied with and on 21 June 2013 I refused a further application for adjournment to obtain the expert evidence. I also refused applications by the defendants to rely on their own separately obtained evidence from an insurance broker in relation to premiums and from an accountant in relation to the value of the business, it being far too close to trial for the claimant to be able to deal fairly with such evidence. There has been no appeal against those rulings, though I have also subsequently had to refuse various applications by Mr Quirke to introduce the excluded expert insurance evidence under other guises.

12. The matter thus came on for trial without evidence that would potentially have been highly relevant to the defendants’ case on causation and loss. Further, the evidence in relation to the amounts claimed and said to have been paid in relation to debtors and WIP was confused, because the parties have put their respective cases in ways which do not allow their figures to be easily compared. Mr Dean has made a sterling effort to reconcile the conflicting ways in which this information was presented, for which I am very grateful.

13. The trial bundles were not agreed. At the opening of the trial I was presented with three lever arch files of additional material, much of which turned out to be duplication, plus additional documents in a “housekeeping” bundle. Much the same was to happen at the subsequent hearings.

14. No doubt at least partly as a result of the lack of focus in preparation, the trial overran inordinately. The original listing of 3 days was largely taken up with last minute applications and lengthy openings, predominantly for the defence. It was adjourned part heard and relisted for two days in September, with two further days in reserve subject to other listings. In the end the two reserve days were not available but would not have been sufficient and the case had to come back for no less than four further days in November. It was only completed then after a last minute application by the defence for a yet further adjournment and a very late sitting on the final day”

WHY THESE COMMENTS ARE IMPORTANT

These issues are important because they highlight the need for good case management and the problems that can occur for the parties, or one of them, if the need for compliance is overlooked.

Amid the mayhem and madness that follows the Mitchell decision it is important that every litigator remembers that, ultimately, case management is means to an end.   If the matter does not settle it will go to trial and the issues in the trial have to be clearly identified and the evidence marshalled. Ultimately this benefits the parties. Not least it enables them to assess the strength of their case and encourages settlement.

If the parties were encouraged to be concerned primarily about these issues, and less with compliance and sanctions issues, then it is far more likely that actions would settle. If they did not settle they would be more fully ready for trial. As it stands at the moment a party can hang on hoping that the claimant will send the bundle out late and the action be struck out as a result.

There are, of course, exceptions (and Weymiss may be one of them) where the actions of the parties themselves hamper their own right to a fair trial.  On the whole however our system of civil justice would fare much better if we were all encouraged to remember that the purpose and point of procedure, and case management, is to ensure a fair trial.

THE PROBLEM WITH MITCHELL: IT HAMPERS CO-OPERATION AND CASE MANAGEMENT (IN SOME CASES).

The real problem with the Mitchell decision is that it was a sledgehammer to crack a nut.  The net result of that decision is that it encourages parties not to co-operate and hope that their opponents, at some stage, will be in default and require relief from sanctions.    I know that some firms have already had “strategy meetings” to ensure that they can make the most of Mitchell.  Any insurer who has had experience of not having to pay out because of a default/sanctions argument will smell blood and demand that their lawyers use this system to the full (all of which is quite legitimate).

When the matter is reviewed in the fullness of time it is likely that it will be seen as a major setback to the principles of case management. It has allowed the rules to become an end in themselves.