The Law Debenture Trust Corporation Plc v Elektrim SA & Anor

Expedition is a discretionary case-management remedy. The court must balance the applicant’s risk from delay against prejudice to the opposing parties, the requirements of other litigants and the procedural history of the litigation. A proposed timetable should be realistic and workable. The court should not impose directions which create impossible working conditions and are likely to result in non-compliance or a later adjournment. Expedition may therefore be justified in principle while an extreme timetable is refused.

The claimant sought expedition of proceedings against Elektrim SA and another defendant. Elektrim was involved in bankruptcy proceedings in Poland, where a creditors’ composition might be voted on and approved before the English claim was determined. The claimant argued that delay could prevent it voting and could leave it with an ineffective judgment if assets were distributed to other creditors.

The first defendant opposed expedition. It challenged the predicted Polish timetable and relied on the claimant’s delay in seeking expedition. It also contended that a December 2008 trial would cause substantial prejudice because the claimant had been permitted to advance significant amended allegations. The court therefore had to determine an appropriate timetable balancing urgency, fairness and the practical requirements of preparing the case.

1. Application and balancing exercise. The court recognised a real risk that delay could prejudice the claimant’s position in the Polish bankruptcy process. That consideration had to be balanced against the interests of other litigants, the history of the proceedings and the prejudice which expedition might cause the first defendant.
2. Realistic directions. The court was not in a position to predict with confidence the timetable of the foreign bankruptcy proceedings, which involved third parties and a foreign court. More importantly, the newly amended allegations created substantial work involving disclosure, witness evidence, expert evidence and a potentially lengthy trial. Directions designed to produce a December 2008 trial would impose impossible working conditions. They would probably not be complied with and would lead to a successful application to move the trial.
3. Order made. The court refused to provide for a December trial but made an expedited and workable timetable. Re-amended particulars of claim were to be served by 11 August 2008, with a defence by 12 September, reply and further asset-value information by 26 September, disclosure by 7 November, inspection by 14 November, witness statements by 12 December and expert evidence by 6 February 2009. A case management conference was to be arranged in the week commencing 13 February 2009, if possible. Trial was directed to take place in the term beginning 21 April 2009, with an indicative estimate of ten to twenty days.
4. The first defendant could apply for a stay based on related Polish proceedings by 12 September 2008. The court did not suspend the directions in anticipation of such an application.