SORTING MAJOR PROBLEMS OUT IN THE MIDDLE OF A TRIAL: SCHEDULES AND STATEMENT OF ISSUES SHOULD BE PREPARED IN ADVANCE NOT DURING A TRIAL

The major purpose of case management is to ensure that when a matter reaches trial the parties, and the judge, know precisely what the issues are in Redd Factors  -v- Bombadier Transportation [2014] EWCH 3138 (QB) this process clearly went awry.  It illustrates the importance of taking steps, and obtaining directions, which allow the issues in dispute to be identified prior to the trial starting.

THE ISSUES

The action concerned a dispute between two companies about the amount of and liability under invoices and whether there could be a set-off against those invoices.

(The reference to “FIM” is a reference to “Free Issue Material”

Procedural matters

  1. It might have been thought, given the nature of the disputes about invoices and costs incurred in obtaining FIM, that the parties needed to co-operate in the preparation of the case to: identify a list of issues; produce a schedule setting out their respective cases on each disputed invoice; and produce a separate schedule setting out their respective cases on the relevant claims for FIM.
  2. None of these steps had been taken before the trial, and issues wholly unknown and unknowable to the other party surfaced for the first time in cross examination on both sides. The fact that the parties had not any realistic idea of the issues which were going to be raised at the trial was part evidenced by the fact that the time estimate given for the trial was “5 to 10 days“.
  3. In my judgment both sides were to blame for this state of affairs. This is because neither side had suggested, let alone made an application to the Court for: a further case management conference in circumstances where the issues had not crystallised before the previous case management conference; the production of relevant schedules; and a list of issues. It is right to record that the Claimant had requested further information from the Defendant, and had obtained an order to that effect, but the request had not identified the critical need for both parties to set out their respective cases on each relevant disputed matter. It should also be recorded that the Defendant had simply served bundles of invoices (forming 15 of the 26 bundles before me) to evidence the FIM claim.
  4. In these circumstances the only realistic options available to me were either to adjourn the trial and list it again in the future, which would have inconvenienced other Court users and caused further delays for these parties, or to attempt to do the best that I could in the time allowed for the hearing. As it was I took the latter course and I made a number of orders providing for a list of issues and the production of relevant schedules. I also permitted a witness to be recalled to enable him to deal with matters which had arisen in the trial. I also directed the parties to attempt to agree various matters, or produce short submissions setting out their respective contentions. An example of this related to the date on which train seats had been delivered by Primarius to Bombardier, which was relevant to certain claims, and which had not been addressed in the evidence of either party.
  5. In the event the case had been listed to be heard over 8 days, and this meant that it was possible for the parties during the trial to do the work that should have been done before the trial, and for the real issues to be identified. In my judgment permitting the parties to deal with issues in this way was consistent with the approach to the Civil Procedure Rules suggested in Denton v TH White Limited and other cases [2014] EWCA Civ 906 because it enabled the real issues to be identified in circumstances where both parties had been at fault in the pre-trial preparation. Whatever the final result there are likely to be costs consequences of the approach taken by the parties to the preparation of this trial.
  6. I say nothing more about the procedural matters arising before the trial, and I am very grateful to both legal teams for their hard work during the trial in preparing the schedules and submissions. However, notwithstanding all the hard work at the trial carried out by both parties, it became clear in the course of closing submissions that the parties needed to produce a further schedule breaking down the costs incurred with various suppliers across the contracts. I gave the parties a further 14 days after the trial to produce this schedule. This was supplied to me on Thursday 17 July 2014, together with an agreed statement of financial information. I have attempted to follow these further schedules, but I am not confident, in the absence of submissions, that I have been able to follow the schedule breaking down costs over various suppliers. I considered it best to attempt to get as far as I could with the new schedules and to set out my findings on this new material, and give the parties permission to agree consequential orders or make further submissions in the light of these findings, and I will then give a short further judgment if it is necessary to do so.”

HIGHLIGHTING THE NEED FOR ADVANCE PLANNING (AND CO-OPERATION)

These comments highlight the need for advance planning and careful preparation when an action such as this proceeds to trial. The use of Schedules; an agreed list of issues in advance would probably have saved time.  In any event it appears likely that the failure to do so will prove costly to both parties.

NOTE THE REFERENCE TO DENTON

Note also the reference to Denton as an aid to case management and how it  highlights the need to identify and adjudicate upon the real issues between the parties.