TIME ESTIMATES: PROBLEMS WHEN THE ESTIMATES ARE TOO SHORT: STILL LOOKING FOR GUIDANCE
I have been searching (so far unsuccessfully) for guidance to litigators and litigants to help provide accurate time estimates. This may well be more of an art than a science. However it is a skill that needs honing. Not only for trials but for interlocutory applications. I was reminded of this when reading the judgment of Mr Justice Holman in Cooke v Parker & Anor [2018] EWHC 371 (Fam).
“The fact is that the courts do have to work to a calendar. This case is jostling for space with many other even more needy cases concerning abducted children, children kept from their parents, and, as I was told this afternoon, a new case coming into the list concerning a dying child. I cannot, in all conscience, remove other cases from the list in order to enlarge the available time.”
THE CASE
The judge was hearing a two-hour pre-trial review in an application for financial remedies. The case was listed for a seven day hearing starting on the 26th February 2018 (the hearing took place on the 2nd February 2018). During the course of that hearing it became clear to the judge that the time estimate was unrealistic.
THE JUDGMENT
What has become absolutely clear to me during the course of today, and indeed increasingly clear as the day has worn on, is that, as things stand, this case simply cannot be resolved in the seven days that are currently allowed for it. We went through a draft hearing template earlier this afternoon. It seems to be agreed that two days of judicial reading time would be required. It was clearly agreed that, at best, oral evidence of the husband and wife and the accountant, Mr Levitt, would occupy the whole of the rest of the first week. There is currently a dispute as to whether or not either or both of the husband’s adult sons should give evidence, but it would be prudent to allow at least a morning on the second Monday for that purpose.
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Realistically, in a case of this detail, each advocate is going justifiably to require about a day each for the making of their final submissions. So at the very best the oral evidence and the submissions might be concluded by the end of the second Tuesday, i.e., at the point when the whole seven days have elapsed. A case of this kind necessarily requires about two days of judgment writing time. There is a great deal of detail currently in the case. All attempts to strip away and discard issues seem so far to have been unsuccessful. Then, of course, there is the need for a day for the delivery of judgment and all consequential matters. That timetable effectively requires two weeks or ten days, not seven. I personally simply cannot provide that amount of time in the period that has currently been listed. I already have fixtures for the whole of the Thursday and the Friday of that week which cannot be moved, and which themselves are likely to require pre-reading.
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Some sense of the range of issues in this case is to be gleaned from the note which
Mr Warshaw prepared for today. At paragraphs 48 and 49 he identifies a range of issues of conduct that each party has raised against the other. It is right to say that Mr Warshaw then goes on to suggest that none of these points amounts to conduct, or should be taken into account, but Mr Richard Bates, who appears on behalf of the wife, is not willing to accept that. The wife strongly contends that there are issues of conduct, at any rate on the part of the husband, which must be taken into account and are likely to have a significant effect on outcome. These include, but are not limited to, the assertion that the husband made a fraudulent insurance claim and led the wife, unwittingly, into being a party to those catastrophic proceedings, which, as I have said, cost the parties nearly £1m. Further, it is said that there is a piece of gross litigation conduct by the husband in that he falsified a letter purporting to have been received from HMRC, so as greatly to augment any indebtedness by him to HMRC.
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On the husband’s side he makes a whole range of allegations against the wife, which may be seen in paragraph 49 of Mr Warshaw’s document. Quite apart from those issues, there appears to be an issue in this case as to a prenuptial agreement. It is common ground that a piece of paper was signed on the day of their marriage, after a long period of premarital cohabitation. The husband would seek to rely on it. Mr Bates has indicated today, on behalf of the wife, that there is a range of reasons why she will argue that it is not worth the paper it is written on. Issues like that will require oral evidence, consideration of authorities around prenuptial agreements, and quite careful consideration by a judge as an additional building block of his judgment. There are, further, huge issues as to the means and assets of the husband and any interrelation between them and those of his sons.
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There appears, further, to be a very considerable issue in this case as to the true underlying value of the parties’ company. The husband asserts that it is capable of being sold as a going concern for a price of some millions of pounds. The wife says that that is, underlyingly, illusory. Apart from its fixed assets, the company is no more than the goodwill of the trading relationship that she and the small staff have with their customers. She says that there are no covenants which require either her or any of the staff to continue to work for the company, and that she could in fact walk away from the company, taking the staff with her, which would have the effect that any residual value of the company would be small. So it can readily be seen that there is a huge range of issues in this case which currently are being litigated with rare intensity, even in the context of matrimonial financial proceedings.
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A glimpse of the detail of the case, and how these parties seem unable to agree on practically anything, was gained this afternoon when we were discussing an Aston Martin DB9 motor vehicle. There is a huge dispute about some Aston Martin vehicle: who bought it and who paid for it. I was trying to untangle that this afternoon when disarray broke out, with each party asserting that the vehicle they are respectively talking about is not the one that the other one is talking about. So it seems that they could not even agree about the vehicle or vehicles in dispute in that part of the case.
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All these factors, cumulatively, lead me very firmly to feel that I, at least, could not resolve this case in the seven days that have been asked for and are available. It may be that some other judge would cut through the case more quickly, but my own practice in financial cases of this kind is to hear and consider the oral evidence and submissions with care, to give very careful thought to the preparation of judgment, and indeed to give a judgment of some detail. It cannot be done in seven days.
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So for those reasons I feel constrained to vacate the hearing that was fixed for 26th February. I regret that. I appreciate that it prolongs the strife, and prolongs what may be a very difficult situation, not only for the parties but for the employees of the company. The fact is that the courts do have to work to a calendar. This case is jostling for space with many other even more needy cases concerning abducted children, children kept from their parents, and, as I was told this afternoon, a new case coming into the list concerning a dying child. I cannot, in all conscience, remove other cases from the list in order to enlarge the available time. So for those reasons, with reluctance but complete firmness, I have decided that I must vacate the hearing that was fixed for 26th February. I have spoken to the Clerk of the Rules. The first available date when a judge can give two clear weeks for this case is 15th October 2018, and that is when it will be re-fixed.
OTHER CASES IN RELATION TO TIME ESTIMATES
In Capita PLC -v- Darch [2017] EWHC 1248 (Ch) Richard Spearman QC observed of the time estimate of one day:-
“I regret to say that I consider that the estimate of pre-reading time was wildly optimistic – the Skeleton Arguments alone, without appendixes, attachments or other working papers, ran to over 70 pages – and that the 1 day hearing estimate was entirely unrealistic.”
Similarly Mrs Justice May DBE in Myall -v- Ministry of Defence [2017] EWHC 1752 observed that an application to amend and for a split trial was given a time estimate of half-an-hour
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I start with the observation that half an hour over the telephone is generally the way that such applications are listed to be heard before the Queen’s Bench Masters; in the vast majority of case that is sufficient. In this particular case, however, with no criticism whatever of listing or of the learned Master, who is very experienced in this area, half an hour over the telephone was insufficient time, in my view, to permit the traversing of the details of the pleadings and the evidence so as to enable a sufficiently detailed appreciation of the case, the issues and the state of the evidence.
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On the face of it, the Master was faced with a very late statement with insufficient explanation for the full extent of the delay together with an apparently contingent amendment. Allowing in the statement and permitting the amendment would, on the Claimant’s own case going into that application, have necessitated moving the trial window. On top of that there was an application for a split trial, also made very late, based on new medical treatment options but without any medical evidence in support. It was, in short, an application made by the Claimant with sparse detail; as it turned out there were important gaps which needed to be augmented by lengthy argument in order for the whole picture to be seen.
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The hearing before me took over three and a half hours…”
STILL SEARCHING FOR GUIDANCE ON ACCURATE TIME ESTIMATES
Remember:
- The judge may require time to pre-read the application (particularly if there are skeleton arguments). If this is the case it is prudent to put pre-reading time into the time estimate.
- Allow a realistic time for both parties to put their case (there is a danger that an applicant thinks their own case is so obviously righteous than the respondent can have nothing to say – this may look unrealistic 3 witness statements and 2 skeleton arguments later).
- The judge will have to consider the matter and give a judgment.
- There will be arguments about costs afterwards (sometimes these can take longer than the original application).