Fitzroy Robinson Ltd v Mentmore Towers Ltd

On a late application to adjourn a trial, the court must apply the overriding objective and assess the parties’ conduct, whether delays can be overcome, whether a fair trial is jeopardised, any particular matter such as the illness of a key witness, and the consequences of adjournment for the parties and court users.

Settlement negotiations do not excuse non-compliance with directions. An applicant must provide a proper explanation and evidence that the delay creates a real difficulty or impossibility. A compressed but equal timetable for expert preparation does not itself make a trial unfair, particularly where the applicant caused its own disadvantage. The court must also give substantial weight to serious prejudice caused by further delay and to the effect on court resources.

The claimant sought fees under architectural contracts. Its claim was based on unpaid invoices which had not been the subject of withholding notices. Liability had previously been determined in the same proceedings by a judgment dated 7 July 2009, [2009] EWHC 1552 (TCC).

Directions were then made for a four-day quantum trial. The defendants did not comply with the timetable for expert meetings, reports or a joint statement. On the day before the pre-trial review, they sought an adjournment on the basis that the expert evidence could not be prepared in time. The issue was whether the quantum trial should be adjourned despite the defendants’ delay.

1. The defendants’ application was dismissed. The court nevertheless revised the timetable so that the trial would begin one week later, on 14 December 2009, while requiring prompt completion of the expert process.

2. The starting point was the overriding objective in CPR Part 1.1 and Boyd and Hutchinson (A Firm) v Foenander [2003] EWCA Civ 1516. A court considering a late contested adjournment should consider the parties’ conduct and reasons for delay; whether its consequences can be overcome; the effect on trial fairness; any particular matter affecting the trial; and the consequences for the parties and the court.

3. The defendants’ settlement negotiations did not justify their failure to comply with directions. Their failure to give earlier notice, their treatment of their expert, and their absence of evidence explaining why the expert work could not be completed showed that the application was tactical and that any difficulty was of their own making.

4. The delays could be overcome by a short revised timetable. Most quantum issues were matters of legal argument and contractual construction, for which expert evidence would be inadmissible. The remaining matters required proportionate, broad expert assessments rather than exhaustive analysis.

5. A fair trial had not been jeopardised. Both parties had the same limited period for preparation. Any disparity in preparation resulted from the defendants’ deliberate failure to instruct their expert and could not justify adjournment. The absence of more detailed evidence did not itself make the trial unfair.

6. There was no special reason such as the illness of a key witness: cf Fox v Graham Group Limited, The Times 3.8.01. Nor could the court assume that the defendants’ case was weak so that an adjournment would be immaterial, unlike the circumstances considered in Lloyds Bank Plc v Dix, [2000] WLR 1918520, 26.10.00. Further delay could seriously prejudice the claimant and disrupt the court diary and other court users. Those consequences reinforced refusal.

High Court (TCC) An earlier liability judgment in the same proceedings was given on 7 July 2009, [2009] EWHC 1552 (TCC). This judgment determines a subsequent application to adjourn the quantum trial. No appellate history is stated.