VERY LATE CHANGE FROM PART 8 TO PART 7: NUANCED CASE MANAGEMENT IN THE TCC
There is an interesting piece of case management in the judgment of Recorder Andrew Singer QC (sitting as a Judge of the Technology and Construction Court) in Ealing Care Alliance Ltd v London Borough of Ealing [2018] EWHC 2630 (TCC).
“The court may at any stage order the claim to continue as if the Claimant had not used the Part 8 procedure and if it does so the court may give any directions it considered appropriate” (CPR Part 8.1(3))
THE CASE
The claimant had issued proceeding seeking an order that it enforce an Adjudicator’s decision. The proceedings were issued as Part 8 proceedings. The matter was case managed and then listed to trial.
THE (VERY) LATE SWITCH TO PART 7
What is interesting is the very late switch to Part 7: this was done on the morning of the trial when it became obvious that there were factual disputes and witness evidence would be called.
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At the CMC I ruled, after hearing argument, that the matter would remain as a Part 8 Claim and that issues as to cross-examination of witnesses of facts would be addressed in the parties’ respective Skeleton Arguments and resolved at the hearing. By the commencement of the hearing it was clear that contentious issues of fact did exist and Ealing, through Mr Williamson QC, intended to cross-examine two of ECA’s witnesses. Ealing had also served a witness statement from Jacqueline Yates, its Head of Older Adults’ Services and Adult Support (although she was not in the event called to give evidence). In those circumstances, the Part 8 procedure was no longer appropriate and I ruled and directed that the hearing would now be heard as a Part 7 Claim (see CPR Part 8.1(3): “The court may at any stage order the claim to continue as if the Claimant had not used the Part 8 procedure and if it does so the court may give any directions it considered appropriate”). Mr Williamson QC reserved Ealing’s position as to whether the Court could so rule, but without suggesting any prejudice which may have arisen as a result of the ruling. The matter continued as a Part 7 trial. In addition, some further without prejudice correspondence was added to the trial bundle by agreement of the parties and was referred to by both parties during the trial.