BREXIT AND…. ACCURATE TIME ESTIMATES FOR COURT HEARINGS: THE COURT IS NOT A RUBBER STAMP
The judgment in AIG Europe Ltd & Anor, Re [2018] EWHC 2818 (Ch) has already been the subject of some consternation, starting as it does with the words ” This case concerns the reorganisation of a major insurance company to prepare for Brexit by transferring its European business from London to Luxembourg.” However this is a blog on civil procedure and we are going to look at much more significant things – that is accurate time estimates for applications.
“… the Court is not a “rubber-stamp” for schemes of this (or any other) type. That means that the Judge needs to be given adequate time for pre-reading and for the hearing”
THE CASE
The claimant was applying for permission to transfer its London business to Luxembourg ahead of Brexit. Permission of the court was required and was granted.
POSTCRIPT
After giving judgment Mr Justice Snowden made the following observations:-
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That concludes the matters which I have to decide. However I wish to make some brief observations on one aspect of the procedure in this case.
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As is apparent from the analysis above, this was a complex and substantial matter involving some novel points. The evidence and relevant documents filled four lever arch files, and the reports of the Independent Expert and the Regulators were detailed and required careful study.
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The hearing in this matter had been arranged well in advance for Thursday 18 October 2018. At that stage, the estimate given to the Court Listing Office was for a short hearing with limited pre-reading. It was only when a hard copy of counsel’s Skeleton Argument was lodged on Wednesday 17 October 2018, i.e. the day before the hearing, that it became apparent that the estimated time required for pre-reading was in fact 5-6 hours, and that the hearing estimate had also increased significantly to 3 hours. Counsel’s clerk very properly drew this to the attention of the Court Listing Office and apologies were rightly offered, but it was entirely fortuitous that I was not in court and was able to be diverted from other work to pre-read and hear the matter, albeit to the detriment of other litigants waiting for a judgment to be written.
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This is not the only case in recent weeks where pressure has been put on the Court and the lists in this manner. As Briggs J made clear in the Pearl Assurance case (above) and as has been emphasised by other Judges on numerous occasions, the Court is not a “rubber-stamp” for schemes of this (or any other) type. That means that the Judge needs to be given adequate time for pre-reading and for the hearing. In a substantial matter of this nature, counsel and solicitors must ensure that the Court Listing Office is informed well in advance of the true extent of the matter so that a suitable Judge can be assigned and given sufficient pre-reading time in his or her schedule. The hearing bundles and skeleton argument must also be lodged well in advance and certainly no later than two clear days before the hearing as required by paragraph 21.77 of the Chancery Guide. Whilst this Court will always do what it can to accommodate the business needs of its users, as the Chancery Guide makes clear, parties who do not assist in this way may find their hearings adjourned or taken out of the list until adequate time can be found.