CASE MANAGEMENT, DIRECTIONS AND ATTENDANCE OF THE PARTIES: A WARNING SHOT FROM THE COMMERCIAL COURT
In Richardson -v- Glencore UK Ltd  EWHC 3990 (Comm) Mr Justice Walker had strong words to say about any apparent casualness by the parties in preparing for, and attending, the Case Management Conference. The judgment was intended to be for general consumption. It is essential reading for everyone involved in litigation in the Commercial Court. There are many points that all litigators could take on board.
Shortly before a case management conference listed in the Commercial Court the parties wrote a letter stating that agreement had been reached in relation to directions and attaching a draft order.
THE JUDGE’S OBSERVATIONS IN BRIEF
- The letter demonstrated a failure to appreciate the role and important of the case management conference and also demonstrated a failure to comply with the special provisions in the Commercial Court Practice Direction.
- It will only be in rare and exceptional cases where case management conferences will be held on paper.
- A late application to vacate a schedule case management conference is misguided and may result in sanctions.
- The normal rule is that an out of time request will not be granted.
- A late request for a paper case management conference represents a severe imposition on the court.
- A list of issues should, at the very least, identify the issues that give rise to a need for expert evidence.
- When statements of case become over-complex a sensible course of action may be to order fresh particulars of claim.
- This should not dissuade parties, in appropriate cases, from requesting a paper case management hearing. However the proper documents have to be supplied and lodged in good time in order that the judge can consider the matter beforehand.
- An oral case management conference represents an opportunity to look at the case constructively and will often lead to an overall saving of costs.
MR JUSTICE WALKER:
- Today I have heard the first case management conference in this action. It is a case which concerns the employment rights of a senior trader who was employed in the trading of commodities. His employment entitled him to certain benefits. Among those benefits were trust arrangements in respect of which the third defendant was trustee. Those trust arrangements are not straightforward. As regards the detail and true effect of those arrangements, as with other aspects of the case, much is in dispute. Indeed the parties have not even been able to agree as to whether the employer was the first or fourth defendant.
- Yesterday afternoon a letter, said to have been written on behalf of all of the parties, was emailed to the court listing officer. It was short and to the point. The letter informed the court that agreement had been reached by the parties on the list of issues, on the case memorandum, and on a draft order as to the pre-trial timetable, all of which were enclosed. It then concluded:
In light of the agreement reached between the parties as to directions for disposal of the case, we would be grateful if the court could please confirm whether our attendance tomorrow will be required.
- Letters which are short and to the point are often desirable. However this letter demonstrated a failure on the part of all concerned to appreciate the role and importance of the case management conference. It also demonstrated a failure to comply with the special provision made for case management in the Commercial Court by CPR 58.13, Practice Direction 58, and the Admiralty and Commercial Court Guide (“the Guide”).
- That special provision is described in detail in section D of the Guide. Within section D, section D8.3 stresses that the case management conference is a very significant stage in the case. Directions appropriate for a case management conference will not normally be made by consent without the need for attendance. The general rule is that there must be an oral case management conference at court. Paragraph (f) of section D8.3 adds that it is unlikely that any case involving expert evidence or preliminary issues will be suitable for a case management conference on paper. In cases involving expert evidence the court is anxious to give particular scrutiny to that evidence, given the cost such evidence usually involves and the need to focus that evidence. In cases where preliminary issues are sought, the court will need to examine the formulation of those issues and discuss whether they are really appropriate.
- The Guide recognises that there are cases which are out of the ordinary where it may be possible to dispense with an oral hearing, if the issues are straightforward and the costs of an oral hearing cannot be justified. As is apparent from the Guide, such cases will be rare and exceptional. In such cases it may be appropriate to make a request that the case management conference be dealt with on paper.
- Such a request should only be made where the legal teams for the parties have carefully considered the matters set out in the Guide and are satisfied that the case is one which falls within that rare and exceptional category. So they must be satisfied that the issues are straightforward and that the costs of an oral hearing cannot be justified. I have emphasised these two matters because both these conditions must be met.
- In such a rare and exceptional case the Guide enables legal representatives, after discussing the matter and agreeing that it is appropriate to do so, to ask for a paper case management conference. Paragraphs (d) and (e) of section D8.3 of the Guide emphasise that in such cases there are special procedural requirements. In part, those requirements arise in relation to the documents to be provided to the court. They include that, in accordance with paragraph (e) of section D8.3 of the Guide, each advocate must be able to give confirmation to the court that the parties have considered and discussed all the relevant issues and have brought anything unusual to the court’s attention.
- The special requirements also concern the time by which those documents must be provided. All the appropriate documents must be lodged by no later than 12 noon on the Tuesday of the week in which the case management conference is fixed for the Friday. Paragraph (d) of section D8.3 of the Guide stresses that this requirement as to timing will be strictly enforced. The essential requirement as to timing is that the papers be lodged by noon on the day that is two clear working days prior to the date fixed for the case management conference.
- Despite what is said in the Guide, however, I have this term dealt with several cases where legal advisers at a late stage have reached a hurried agreement as to orders to be made at the case management conference. This has then been followed by an out of time request to the court to vacate the scheduled hearing. In this judgment I explain why such an approach is misguided and may result in sanctions.
- This case exemplifies the disruption to orderly conduct of the court’s business that can be caused by such late requests. It also exemplifies something which in my experience has been a uniform feature: namely, that the lateness of such a request is a symptom of problems with preparation. Such problems often include difficulties or failures in getting to grips with the case well in advance of the case management conference, in giving proper consideration to what the real issues are, and in working out in practical terms how determination of those issues at trial can best be assisted by appropriate pre-trial directions.
- As to disruption to orderly conduct of the court’s work, as is clear from the Guide, the general rule will be that an out of time request will not be granted. Even so, in order to put the matter before a judge for consideration of whether to depart from the general rule, staff in the listing section have had to divert their attention from other matters. This, as could have been predicted, was at a time when they were already pressed with late papers and other urgent preparatory arrangements for the hearings on Friday. As the day set aside for hearing of applications, Friday is invariably a particularly busy day in the Commercial Court, as is the Thursday which precedes it. In addition in the present case my clerk has had to devote time to this request which could more profitably have been used on other work. Having seen the request, I reluctantly concluded that I should put aside other urgent work in order to review the case management bundle and the material which had been emailed to the court.
- I emphasise that parties who make late requests of this kind can have no legitimate expectation that the court will take the steps which occurred in this case. Indeed, as paragraph (d) of section D8.3 of the Guide makes clear, ordinarily failure to lodge the requisite documents on time will result in the case management conference going forward to an oral hearing. That paragraph also makes it clear that if the failure to lodge the papers is due to the fault of one party and it is for that reason that an oral case management conference takes place, that party will be at risk as to costs.
- If parties make a late request for a paper case management conference, however, then they must recognise the degree to which they are imposing on the court. In particular they must recognise that, unless there is good reason for a late request, they run the risk of sanctions for failure to comply with the requirements in the Guide.
- There are several reasons why the Guide takes the trouble to set out and explain these requirements. First, a fixture has been given to the parties so that their case can be considered at the case management stage by a judge who would otherwise be dealing with cases involving other parties. If, exceptionally, that fixture is not needed then sufficient notice should be given to enable the fixture to be made available to others who may have an urgent need for it. Second, it is in the interests of all court users that the case management conference should generally take place at an oral hearing, so that it can be an occasion when a judge takes a constructive look at the case so as to give practical and just directions, with a view to efficient preparation for the trial. Third, as I have already noted, late requests to vacate the hearing can cause considerable disruption.
- I turn to the lateness of such requests being a common symptom of problems with preparation. My review of the case management bundle in this case led me to conclude that there had been a failure to give proper consideration to section D8 of the Guide. Section D8.3 of the Guide makes it plain that a paper case management conference is only appropriate where the issues are straightforward. But the parties in the present case agree that the case is a complex one. Indeed a letter dated 29 October 2014 to the judge in charge asserted that the complexity of the case was so great, including as to expert evidence on Swiss law, that a designated judge should be appointed.
- Moreover, the parties failed to comply with important requirements in section D8.3 of the Guide. Yesterday’s letter to the court was not accompanied by any such confirmation as would comply with paragraph (e). No explanation was given for this failure. Nor was there any attempt to explain why the time limit in paragraph (d) had not been complied with.
- Those representing the parties at today’s hearing have recognised that the request to vacate the hearing should never have been made. They have tendered appropriate apologies in that regard. But there were more deep-seated problems with the parties’ preparation for the case management conference. At the case management conference today a key working document has been the proposed list of issues which the parties had agreed upon yesterday. It was an unsatisfactory document in many respects. Among other things, it failed to identify key matters, including questions as to governing law which are in issue. In relation to Swiss law it failed to identify what issues of Swiss law arise and why. I recognise that at the first case management conference it is important that the list of issues should not be over elaborate. However, in a case where it is proposed that the court should give directions for expert evidence, it should at least be possible to identify the issues that give rise to a need for expert evidence. In a case where it is said that expert evidence of foreign law will be required, it ought to be possible to identify issues as to which system of law is relevant on particular questions, and to identify what the relevant issues as to foreign law are said to be. If this is not possible then the parties must propose a practical way forward which will enable such issues to be identified promptly.
- In the present case there are unsatisfactory features of the statements of case, starting with the particulars of claim, which underlie the problems with the proposed list of issues. I have concluded that the existing statements of case have become such a morass that the sensible and proportionate course is to give directions for fresh statements of case. The starting point will be fresh particulars of claim in which, rather than pleading an elaborate and convoluted history of events that are said to have occurred, and alleged motivation for these events, a proper approach is to be taken under which the contracts and contractual terms relied upon are to be set out; the breaches of relevant terms are to be set out; and the consequential claims for relief are to be set out. I make it clear that I do not today express any conclusion on whether the problems with later statements of case are entirely attributable to the unsatisfactory features of the original particulars of claim. I also make it clear that Mr Selwyn Bloch QC, his junior counsel, and his instructing solicitors come fresh to the matter. Their instructions to act for the claimant are relatively recent and they are not responsible for the deficiencies in the original particulars of claim.
- In a note to the parties yesterday evening I expressed concern that something needed to be done to bring home to legal advisers that they must prepare for the case management conference well in advance, and that they must comply with section D8.3 of the Guide. In appropriate cases failure to comply with requirements in the Guide can and will be marked by sanctions in furtherance of the overriding objective set out in CPR 1. In the present case I warned yesterday that the sanction which I had in mind for the failure to comply with section D8.3 of the Guide was an order that each side should bear their own costs of the case management conference.
- As regards the sanction for the failures to comply with section D8.3 of the Guide I have, as an act of mercy, refrained from making the order which I contemplated yesterday. I have instead ordered that there is to be an urgent transcript of the present judgment and that the costs of that transcript should be borne as to one-third by the claimant, as to one-third by the first and fourth defendants, and as to one-third by the third defendant. The fact that I have not made a more severe order today should not be taken as any indication that a more severe order would not have been appropriate. Nor should it be taken as any indication that a more severe order will not be made in future.
- Nothing in this judgment is intended to dissuade or criticise those who, after proper consideration, agree that a request for a paper case management conference should be made, meet the requirements as to the documents to be supplied, and lodge those documents in good time. The court may or may not agree that a paper case management conference is appropriate. The mere fact, if it be the case, that the court does not agree will not of itself give rise to any sanction if the request has been made after reasonable consideration of the matter and has been put before the court in accordance with the procedure set out in the Guide. What I emphasise in the present judgment is that those, by contrast, who make out of time requests to vacate a case management conference in the Commercial Court should not assume that they can do so with impunity.
- There is another general lesson to be learned from what has happened in this case. The parties made an out of time request for a paper case management conference despite the Guide stressing how important it is to make such a request within time. The moral for anyone contemplating such a request is that if the parties have not been able to agree upon and prepare the requisite documents within time, then the case is likely to be one in which an oral case management conference will be of particular benefit. An oral case management conference is not something to be feared, nor is it something so unimportant as to be no more than a nuisance. It is a valuable opportunity in which the parties have the benefit of a judge giving the case a constructive look, working through the practicalities of what the parties have in mind, and seeking to ensure that the case is on track to proceed in a way which will be efficient, which will be fair to both sides, and will accord with the interests of justice. Save in the most exceptional circumstances, the appropriate course for anyone who is thinking that costs might be saved by an out of time request for a paper case management conference is to think again. The best working assumption is that the benefits of an oral case management conference will more than justify the costs involved.