Fitzpatrick Contractors Ltd v Tyco Fire & Integrated Solutions (UK) Ltd

An adjournment of a complex trial should be granted only where necessary to secure a fair and effective hearing consistent with the overriding objective. The court must consider proportionality, cost, the importance and complexity of the case, expedition, fairness and the proper use of court resources. A timetable that cannot realistically accommodate necessary pleadings, witness statements and expert evidence should not be maintained merely to preserve the listed trial date. An adjournment remains a remedy of last resort. Where delay is substantially self-inflicted, the court may make a costs order reflecting that responsibility, even if the opposing party’s conduct has also contributed to the need for further time.

Fitzpatrick Contractors Ltd brought substantial claims against Tyco Fire and Integrated Solutions (UK) Ltd arising from refurbishment works at the Blackwall Tunnel. Tyco defended the claims and counterclaimed. The trial was listed for 10 November 2008 following earlier case-management directions.

Fitzpatrick applied to adjourn the trial to 21 April 2009. The application relied on the complexity of the case, the remaining pleadings, witness evidence and expert evidence, and the inability to complete those steps within the existing timetable. Tyco opposed the application, although its amended Defence and Counterclaim also introduced matters requiring further work. The court had to decide whether a fair and effective trial could take place in November and how responsibility for the adjournment should be allocated.

1. The application was granted and the trial was adjourned from 10 November 2008 to 21 April 2009. The court concluded that the November date could not produce a fair or effective trial consistent with the overriding objective in Civil Procedure Rules 1998 rule 1.1.

2. In applying rule 1.1(2), the court considered proportionality, the amount of money involved, the importance and complexity of the case, expedition and fairness, and the appropriate share of court resources. The Practice Direction to Part 29 also treated an adjournment as a remedy of last resort. The court applied the approach in Rollinson v Kimberly Clark Ltd [2000] CP Rep. 85, including the need to progress litigation as rapidly as reasonably possible consistently with justice.

3. The existing timetable required approximately ten and a half months’ work to be completed in about three and a half months. The expert evidence showed that the timetable was unrealistic, witness statements could not be prepared in time, and the compressed sequence of pleadings, statements, expert meetings and reports would risk incomplete evidence, abortive work and inadequate preparation. The proposed timetable also left no proper allowance for further information, supplementary reports or meaningful preparation for trial.

4. The principal cause of the difficulty was Fitzpatrick’s delay, particularly its failure to progress its own witness evidence proactively. Tyco’s amended pleading was a subsidiary cause because it introduced materially different delay and prevention cases requiring substantial further factual and expert work. Fitzpatrick was therefore ordered to pay 60 per cent of Tyco’s costs of and occasioned by the adjournment, including the costs of the application.