Bertram v Dawes

In deciding whether to adjourn a long trial because of late disclosure, the court must assess whether a fair trial remains possible and whether the affected party has sufficient time to consider the material and prepare its case. Relevant photographs need not justify a lengthy adjournment merely because they are numerous. Their likely evidential significance, the extent to which they are corroborative rather than probative, the time required for experts and witnesses to review them, and the practical effect on legal preparation are material considerations. The court should balance fairness against the overriding objective and the availability of an earlier trial date.

The claimant, an architect, claimed outstanding professional fees from the defendant. The defendant brought substantial defences, set-off and counterclaims concerning construction defects, procurement, and certificates of practical completion and making good defects. Shortly before the listed 16-day trial, the claimant disclosed approximately 1,100 to 1,200 photographs originating from the contractor’s records.

The defendant applied to adjourn the trial for several months. The central issue was whether the late disclosure made a fair trial impossible on the existing timetable, or whether a shorter postponement would provide sufficient time for the parties’ experts, witnesses and lawyers to consider the photographs.

1. Application granted in part. The trial was deferred by one week, from 21 November to 28 November 2011. A postponement until the following year was refused.
2. The governing question was whether, in light of the impending trial, the defendant and his professional team could have sufficient time to take the photographs on board so that the trial remained fair. The court could not resolve disputed questions about access to the photographs on written evidence alone.
3. The photographs were potentially relevant to the visibility and timing of defects, the state of progress, and aspects of the procurement case. However, many were likely to be corroborative rather than directly probative, and the court did not consider that the existing evidence would be severely affected merely because a large number of photographs had to be reviewed.
4. Experts and witnesses should nevertheless have a proper opportunity to examine the material. The principal difficulty was the insufficient time that would otherwise remain for the lawyers to prepare skeleton arguments, openings and cross-examination. That justified a short adjournment.
5. The court applied the overriding objective and its general preference for bringing cases to trial as soon as fairness and reasonable practicability permitted. A lengthy adjournment would have caused substantial delay because a trial of this length could not safely be accommodated for several months. Supplementary witness statements were to address the photographs by 11 November, and expert reports and joint statements were to be finalised by 17 November.