TIME ESTIMATES FOR APPLICATIONS: THE PROBLEMS, THE CASE LAW AND SOME GUIDANCE

The post earlier this morning on the warnings given in Finvest Holdings Sarl -v- Lovering [2021] 3WLUK 579 inrelation to inaccurate time estimates has led to some responses on Twitter.  Practitioners have highlighted the difficulties, a judge expressed their concern that unrealistic time estimates are given in order to obtain an early hearing date.  This caused me to look at the guidance given in the Commercial Court and also revisit the observations by Mr Justice Andrew Baker made in Kazakhstan Kagazy Plc & Ors v Zhunus & Ors [2020] EWHC 128 (Comm) about inadequate time estimates.  Time estimates are an important element of litigation.  A consideration of how to make time estimates more accurate would be of considerable benefit to the whole civil justice system.  This provides a good opportunity to review judicial observations on time estimates and consider how they can be made more accurate.

 

“…there is a general duty on counsel and solicitors to inform the court if it is obvious that the time estimate is incorrect. Failure to do so is likely to result in the case not being heard and this plainly could have substantial costs implication”

THE COMMERCIAL COURT GUIDANCE ON TIME ESTIMATES

The Commercial Court and the London Circuit Commercial Court sent out a notice on 28th September 2020.

 

“Notice from the Judges in Charge of the Commercial Court and the London Circuit Commercial Court
We write to raise an issue regarding the noticeable increase in both courts in the number of applications and trials for which inaccurate reading and hearing time estimates have been provided.
This is an issue which previous judges in charge have raised; it has again become a real concern. The lists are always very busy and judges have very limited time available. Inaccurate time estimates adversely impact the ability of judges to deal efficiently and fairly with listed business – both as regards the case in question and other court users’ cases. They are unfair on those litigants who do provide accurate time
estimates.
We would therefore like to highlight the following points:
Pre-reading:
o Estimates need to assume that: (i) the judge is not familiar with the case and (ii) this reading will allow them to gain an understanding of the issues. Facts and arguments cannot be absorbed at a “skim read” pace.
o A generic listing of skeletons, pleadings, lists of issues, and all the witness statements is almost never helpful and wastes time.
 Hearing time estimates:
o A realistic approach needs to be taken to what is to be covered in the hearing time, the pace
at which documents/authorities can be taken and the time needed for oral argument on the
issues raised.
o There is a particular problem concerning applications that are estimated for half a day. Half
a day is strictly 2.5 hours inclusive of a judgment and costs arguments (Guide
paragraph F10.6).
o Submissions in a half day hearing therefore need to be capable of being completed within 1.5 – (maximum) 2 hours.
o Because of the number of inaccurate half day estimates, where any hearing is sought to be listed for half a day:
 A written confirmation of the robustness of this estimate (including pre-reading and time needed for judgment and consequentials) will now be required from counsel instructed.
 Inaccurate hearing estimates may result in a case being stood out of the list and relisted for a realistic time estimate with no expedition of the relisting. There may also be costs consequences.
Mrs Justice Cockerill HHJ Pelling QC
Judge in Charge of the Commercial Court Judge in Charge of the London Circuit Commercial Court

THE JUDGMENT IN KAGAZY

The judge considered the time estimate.

15. I do however record here my criticism of their time estimate. The applications were listed for argument on a Commercial Court Friday, time estimate half a day, plus reading time of 3-4 hours. The reading estimate was just about adequate, but only because (which the parties could not have assumed when listing) I had a prior familiarity having conducted substantial elements of the case management in the charging order proceedings. More importantly, however, this was not and should never have been listed as a half-day hearing.
  1. Under-estimation of the time required to argue applications in the Commercial Court, especially those for which the parties seek a Friday listing, is a significant current problem. In the hope that it may do something to start to turn the tide in that regard, I wish to emphasise that a half-day hearing estimate in this court is supposed to mean that a maximum of 2½ hours will be required for all substantive argument, an oral judgment and the determination (with argument as required) of consequential matters. As a realistic rule of thumb, therefore, parties should not ask for a half-day hearing unless they are confident, having considered the matter with care, that substantive argument will be completed within 1½ hours maximum. It should not be assumed that judgment will be reserved; and if it is reserved, the final hour or so of hearing time not spent in court can and should be available to the judge to reflect and make key notes, fresh from the argument, for the structure and content of the judgment that he or she will then need to write. In the present case, I question in any event whether it was realistic to think that half a day was sufficient even just for the substantive argument, which took about 3½ hours.

 

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

  1. 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.
  2. 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.
  3. The hearing before me took over three and a half hours…”

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.”

In a family case reported on this blog.

“…there is a general duty on counsel and solicitors to inform the court if it is obvious that the time estimate is incorrect. Failure to do so is likely to result in the case not being heard and this plainly could have substantial costs implication”

Mr Justice Snowden in AIG Europe Ltd & Anor, Re [2018] EWHC 2818 (Ch):-

  1. 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.
  2. 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.
  3. 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.
  4. 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.

 

GUIDANCE ON TIME ESTIMATES

I’ve written before on the absence of any guidance in relation to time estimates.  A brief consideration of any application will lead to the recognition that:

  • The judge has to read the application.
  • The judge will have to read the evidence in support (or that part that appears relevant).
  • The judge will have to read any evidence in response.
  • The judge will have to read any skeletons.
  • The judge will have to hear the advocates.
  • The judge will have to give a decision.
  • The judge will have to decide who pays the costs.
  • The judge will have to decide the figure for costs (unless fixed costs apply).  There may be an argument over whether fixed costs apply.
  • Every litigator will have experience of the arguments over costs liability, and the amount of costs, taking longer than the actual application).

All of this has to be recognised when a time estimate is considered.

 

THE “I AM SO RIGHT THAT THIS WILL TAKE NOT TIME AT ALL” APPROACH

Some applications are given time estimates because the person making the application is so convinced of the rightfulness of their cause.  Within a millisecond any judge looking at this matter must recognise how right they are, and how unreasonable and obdurate their opponent is, and grant the application, and indemnity costs, without the need for further consideration. A 20 minute time estimate is wholly reasonable.

This approach is a bit worrying when the respondent files witness evidence in response, within 46 exhibits and a 212 paragraph skeleton argument.

  • It is prudent to consider whether the application is likely to be resisted.
  • It is important that the time estimate is reviewed and the court notified as soon as possible if the time estimate is unrealistic.

THE RESPONDENT CANNOT STAND IDLY BY

A respondent to an application may think it safe to note the unrealistic time estimate and hope to turn up and get the costs of the adjourned hearing.  This is approach is a risky one.

As we know every application has to mention the overriding objective at least once in order to satisfy the gods of litigation.  However a respondent should ponder CPR 1.3

“Duty of the parties

1.3
The parties are required to help the court to further the overriding objective.”

If the respondent knows, full well, that its own presentation of a response is going to make the time estimate unrealistic then CPR 1.3 rather indicates that the respondent should inform the applicant, and the court, as soon as practicable. This would be a proportionate step, it would save expense and ensure that the case is heard expeditiously and fairly.   The earlier the application is adjourned and given an adequate time estimate, the earlier it is likely to be heard.