Gilbart v Graham (A Firm)

A trial date should be vacated where, despite the need to manage court resources and other litigants’ interests, proceeding would deny a party a fair trial. The court must consider both whether the outstanding work can realistically be completed and whether a fair trial will then be possible. The overriding objective requires proportionate, expeditious and fair case management, having regard to the amount at stake, the complexity of the issues and the appropriate use of court resources. A party entitled under an existing order to rely on expert evidence must have a realistic opportunity to obtain and use that evidence.

The defendant appealed from a case management decision of HHJ Milwyn Jarman QC in the Chancery Division, refusing to vacate a five-day trial listed to begin on 30 June 2008. Liability in the solicitor’s negligence action had been resolved, but a substantial Lloyd’s loss-of-profits claim remained for assessment.

Significant disclosure remained outstanding, including documents concerning the claimant’s financial position and Lloyd’s membership. The defendant also had permission under an existing order to obtain expert evidence on Lloyd’s practice, but could not realistically instruct an expert until disclosure was complete. The central issue was whether the trial could fairly proceed on the listed date.

1. Appeal allowed. The High Court’s refusal to vacate the trial date was set aside because the judge had exercised his case management discretion in error.
2. The judge was entitled to consider whether disclosure might technically be completed before trial. That question was insufficient. He also had to ask whether, if disclosure were completed at that stage, the defendant could nevertheless receive a fair trial.
3. The overriding objective in Part 1(1) of the Rules required the court to deal with the case justly. Relevant considerations included equality between the parties, saving expense, proportionality to the amount involved and complexity of the issues, expeditious and fair determination, and the proper allocation of court resources.
4. The claim involved a substantial sum and extensive outstanding disclosure. The defendant was entitled to rely on expert evidence concerning Lloyd’s practice under an unchallenged order. It was unrealistic to expect an expert to be instructed at short notice, before the relevant documents were available and while the scope of the expert’s task remained uncertain.
5. In those circumstances, proceeding with the trial would not have been fair. An adjournment was necessary, notwithstanding the importance of preserving a fixed trial date for the benefit of other litigants.

• Court of Appeal (Civil Division): allowed the defendant’s appeal against the High Court’s refusal on 6 June 2008 to vacate the trial date. A later refusal on 19 June 2008 was not itself appealed.
• High Court, Chancery Division, Cardiff District Registry: HHJ Milwyn Jarman QC refused the adjournment application and kept the five-day trial listed for 30 June 2008.