Holmes v SGB Services Plc

Case-management decisions under the Civil Procedure Rules are discretionary. An appellate court may interfere only where the judge erred in principle, plainly went wrong, or ignored a relevant rule. It cannot substitute its own balancing exercise. The overriding objective requires all listed considerations to be balanced, including equality, expense, proportionality, expedition, fairness and allocation of court resources. No consideration has automatic priority. The former practice of treating adjournments as acceptable whenever costs or interest could compensate the other party is inconsistent with the new procedural code. Guidance restricting adjournments after non-compliance with case-management directions applies in a properly managed case. It did not govern this unusually unmanaged case, where a court-appointed joint expert had raised a possible alternative accident mechanism.

The claimant, a heavy goods vehicle driver, alleged injury while unloading scaffolding from a hydraulic crane. The defendant denied that the accident occurred or contended that it could not have happened as described. A jointly instructed court-appointed engineer’s report supported the defence but identified a possible alternative involving the load shifting within its webbing slings.

The claimant amended his case and sought further expert instructions. The Liverpool County Court judge vacated the trial date, permitted amendment and re-instruction of the expert, and ordered consequential costs against the defendant. The defendant appealed with permission. The central issue was whether the judge had wrongly exercised his case-management discretion under the overriding objective by permitting late amendment, further evidence and an adjournment.

Appeal dismissed with costs. Lady Justice Arden gave the leading judgment. Lord Justice Buxton agreed and added guidance on the effect of the Civil Procedure Rules. Lord Justice Henry agreed with both judgments.

1. The judge was exercising a case-management discretion. The defendant therefore had to show an error of principle, rather than merely establish that another decision was possible. The Court of Appeal would intervene only if the judge had gone plainly wrong or ignored a relevant rule or direction.
2. The judge correctly applied the overriding objective in Part 1 of the Civil Procedure Rules. He was entitled to balance the competing considerations, including the claimant’s opportunity to investigate the alternative theory, the age and value of the claim, possible prejudice, additional expense, expedition, fairness and court resources. The claimant’s late application and the tentative nature of the expert’s alternative theory were strong points for the defendant. Countervailing considerations included the absence of significant additional prejudice, medical evidence consistent with an accident, the claimant’s account to the expert and chiropractor, and the absence of pleaded or expert support for the defendant’s technical case.
3. The Rules constitute a new procedural code. They must be construed in their own right, without reverting to pre-Rules practice unless there is a compelling reason. It is insufficient to assume that an adjournment is acceptable merely because the other party can be compensated by costs, interest or a similar order. The court timetable and allocation of resources are material aspects of dealing with cases justly and must be balanced with the other criteria without giving any one undue weight.
4. In a properly managed multi-track case, the practice direction annexed to Part 29 gives firm guidance that only the most exceptional case will justify curing non-compliance with case-management directions by adjourning the trial. That guidance did not apply here because the case had not been effectively managed under the Rules and there had been no relevant failure to comply with directions. The case was also unusual because the possible alternative case came from the court-appointed joint expert.
5. The court added that the claimant’s evidence should be completed before fresh expert instructions were given. Any supplemental witness statement should be served promptly and, together with the original statement, stand as evidence-in-chief unless the trial judge gave permission for further evidence.

• Court of Appeal (Civil Division): appeal against the case-management order dismissed with costs.
• Liverpool County Court: on 5 September 2000, His Honour Judge Marshall Evans QC vacated the trial fixed for 7 September 2000, permitted amendment of the claimant’s case, directed further expert instructions and ordered consequential costs against the defendant.