TIME ESTIMATES: “WILDLY OPTIMISTIC TO THE POINT OF ABSURDITY”: AN UNHAPPY JUDGE

In  E v B (Interim Maintenance Inaccurate Time Estimate) [2021] EWFC 90 Recorder Chandler made some observations on the difficulties the courts face when the parties list hearings with inadequate time estimates.  These are matters of general interest relating to all types of litigation.

“… the parties’ agreed position that this hearing, comprising the two interim applications and a contested First Appointment, could be heard within 2 or 2 ½ hours was wildly optimistic, to the point of absurdity.”

THE CASE

The Recorder was hearing  applications for interim maintenance and a costs allowance.   The time estimate for the applications was 2 – 2 1/2 hours.  The application took much longer.

THE JUDGMENT ON TIME ESTIMATES

The Recorder set out the difficulties that the inadequate time estimate had caused.

Interim hearings

1. 1. While the sums at issue in these applications are relatively modest, set against the value of the assets in this case (put respectively at £5.6m (W) or £2.5m (H)), or compared with the cases that typically appear in the law reports, this hearing raises a number of problems which in my experience as a part-time judge and practitioner are endemic in interim financial applications:

(i)                 the agreed time estimate was grossly underestimated;

(ii)              the parties’ witness statements for these applications were too long and too densely detailed;

(iii)            while the court bundle nearly complied with the 350-page limit, once counsel’s (excellent) position statements and copies of the four authorities were added, the bundle exceeded 480 pages;

(iv)             the parties’ expectations in terms of judicial pre-reading were unclear and/ or unreasonable; and

(v)               the length of oral submissions bore no relation to the agreed time estimate.

1. 1. In this case, it took me a total of 1 ½ hours to read the essential material, 1 hour’s pre-reading and 30 minutes taken during the hearing. This comprised counsel’s position statements (28 pages), the three witness statements prepared for these applications (25 pages, several of which were single spaced), and the opinion of a solely instructed expert in relation to foreign exchange controls (25 pages including answers to replies). I also scanned W’s first witness statement, the parties’ Forms E, the four authorities, and various other relevant documents, including earlier orders.

1. 1. I started the hearing at 2pm and concluded it at 6pm (having released my clerk at 4.30pm). After 3 ½ hours of oral submissions and 30 minutes of judicial reading (taken during the hearing, to complete my essential reading), I had to reserve judgment and adjourn the First Appointment to a further date.

1. 1. Making every allowance for the vagaries of litigation, where lists may collapse or individual judges might have found time to extensively pre-read into a case, the parties’ agreed position that this hearing, comprising the two interim applications and a contested First Appointment, could be heard within 2 or 2 ½ hours was wildly optimistic, to the point of absurdity.

1. 1. For too long, interim applications like these (i.e. applications for interim maintenance and/or costs allowance, or, in a more typical case, applications for maintenance pending suit and/or a legal services order) have been crow-barred into inadequate time estimates, allowing the court insufficient time to consider the papers before the hearing, or sufficient time to properly review its judgment, in the context of what are often the most hotly disputed applications in financial remedy applications. Without wishing to labour an obvious point, the court’s task in an interim hearing is fundamentally different from a First Appointment or an FDR when it will be making summary decision on directions (with occasional, short judgments) or giving an indication. Just as practitioners should not receive unreasonable demands from the judiciary, so judges should not be put in the sort of position this court faced in the present case: well-being is a two-way street. Realistic time estimates must be given.

1. 1. I note that similar observations have been made in earlier cases, in the family court and elsewhere:

(a)   “…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 implications” Francis J in O’Dwyer v O’Dwyer [2019] EWHC 1838 (Fam) at [7]

(b)   “…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.” Baker J in Kazakhstan Kagazy & Ors v Zhunas [2020] EWHC 128 (Comm) at [16]

1. 1. In my judgment, this case should have been listed with a one-day time estimate. I appreciate that by their nature, these applications need to be heard at the earliest opportunity. However, that does not excuse the provision of a manifestly wrong time estimate. As it happens, I have been able to arrange time to write this judgment, in order to deal with these applications. However, in my view, parties should not be placing the court in this sort of position, or, if they do, they should be aware of the possibility of adjournment and costs sanctions.

1. 1. In the circumstances, I have directed that this judgment should be published on BAILII. I am mindful of the encouragement of publication of judgments from all levels of judges sitting in the family court, contained in Sir James Munby’s Practice Guidance of 16 January 2014, which has been repeated in Sir Andrew McFarlane’s Guidance (‘Confidence and Confidentiality’) of 28 October 2021, which was handed down in the hiatus between this hearing and the finalisation of this judgment.

1. While the court was placed in an invidious position in this case (i.e., having to sit until 6pm, prepare a reserve judgment and adjourn the First Appointment), I would like to record my thanks to both counsel, respectively Deepak Nagpal QC for the wife and Richard Castle for the husband, for their careful and analytical written and oral submissions, without which this hearing might have taken even longer.