DELAY IN GETTING TO TRIAL – AND ITS NOT THE COURT’S FAULT: COUNSEL’S AVAILABILITY AND DELAYS – A REMINDER OF THE JIGSAW PROBLEM…
There is often much criticism about the length of time it takes to obtain a trial date. The observations of Mr Justice Fraser in Dacy Building Services Ltd v IDM Properties LLP  EWHC 178 (TCC) indicate that it is not always the fault of the court system.
“Fitting hearings around their availability has all the disadvantages of doing an intricate jigsaw puzzle, with none of the fun associated with that activity.”
The claimant was seeking to enforce the decision of an adjudicator. A one day trial was listed to decide the issue of whether there was, in fact, a contract.
WHY DID IT TAKE SO LONG?
Oral contracts that are construction contracts are now therefore sufficient for disputes under them to be governed by the statutory regime of adjudication. IDM Properties’ case is that no such oral agreement was reached at all with Dacy, and that Dacy was working on site for an entirely different entity with whom Dacy had contracted, a company which is now insolvent. This is the central and only point in this trial, to which I will return in some detail. The written evidence before Jefford J reflected these starkly opposing positions, and it was for this reason that she ordered the issue be resolved after a trial, and that the trial be expedited.
It may however strike an objective observer as somewhat difficult to understand why, given this was an adjudication enforcement, and given that the order of Jefford J was made in November 2016, this trial did not take place until mid-January 2018. That lapse of time might give the impression that the Technology and Construction Court could not accommodate a trial of this issue (and, one would assume, the parties’ joint wishes to have this matter resolved speedily) in a period of less than 14 months. Rather the converse is the case, however. The Court did list the matter for a trial date in early 2017, consistent both with the order of Jefford J and with the requirement to deal with such adjudication business as quickly as practicable. Had that trial taken place as originally listed, the matter would have been resolved over a year ago. However, it did not do so and the circumstances in which it was not listed, and eventually came to be listed so long after the order by Jefford J, are controversial. Regardless of what happened in this case, if the court orders an expedited trial it is incumbent upon both parties and their legal advisers to do their best to list the matter. The vexed matter of counsel’s availability lurks in the background, as often happens, and all I can do in that respect is repeat my views in Bates v Post Office Ltd  EWHC 2844 (QB).
WHAT THE JUDGE SAID IN BATES -v- POST OFFICE
We have looked at this case before. The judge was considering an application for adjournments in a multi-party case.
“Counsel of high repute – which in this case they are – are extremely valuable in the marketplace and have many potential clients. They all work extremely hard and it is a function of the independent Bar that they will usually have multiple cases underway simultaneously. However, such counsel will, by definition, usually have a large number of hearings in their diaries. Fitting hearings around their availability has all the disadvantages of doing an intricate jigsaw puzzle, with none of the fun associated with that activity. This difficulty becomes even more acute if hearings of four weeks and longer are required, which in this group litigation they will be. Whilst it may be regrettable that one party might be deprived of their counsel of choice because of listing, that is a not unusual situation. Where there is reasonable notice of a diary conflict, which there undoubtedly is in this instance, arrangements for a suitable replacement can invariably be made by the disappointed party, if a replacement is necessary.”