Scriven v Scriven & Ors

An application to vacate a fixed trial date requires a case-management balancing exercise under the overriding objective. The court must weigh proportionality, expedition, fairness, efficient use of court resources and the prejudice to each party. Difficulties caused by late preparation, inadequate disclosure or delayed arrangements for expert evidence may carry limited weight where the applicant contributed materially to those difficulties. Litigants in person should receive appropriate allowance, but that does not displace the need to progress litigation efficiently. A trial should be adjourned only where the overall circumstances provide a sufficiently strong reason to do so.

The first, second and third defendants applied to vacate a 12-day trial listed to begin on 13 January 2014. They relied on amendments to the particulars of claim, difficulties obtaining disclosure, the absence of an expert report and counsel’s scheduling difficulties. The claim had increased substantially in value following amendments made during October and November 2013.

The claimant opposed the application, relying on the defendants’ earlier knowledge of the issues and their delay in obtaining expert assistance and pursuing disclosure. The central issue was whether the defendants had shown a sufficiently strong reason to displace the existing trial timetable.

1. The application to vacate the trial dates was refused. The power arose from the court’s general case-management jurisdiction and, in particular, Civil Procedure Rules, rule 3.1(2)(b). It had to be exercised consistently with the overriding objective.
2. The relevant exercise involved balancing the need to deal with the case proportionately, expeditiously and fairly, the proper allocation of court resources and the parties’ respective prejudice. Proportionality of cost remained particularly important following the Jackson reforms.
3. The principles summarised by Coulson J in Fitzroy Robinson Ltd v Mentmore Towers Ltd [2009] EWHC 3070 (TCC), at paragraphs 7 to 9, were applicable despite factual differences. The court was required to consider the circumstances in the round rather than treating any single difficulty as decisive.
4. The defendants’ lack of an expert report and disclosure difficulties were capable of causing prejudice. However, many of those difficulties resulted from failures extending over several months. The defendants had not acted with sufficient expedition after the November hearing and had known for some time of the trial date, the disclosure obligations and the need for forensic accounting evidence.
5. Some allowance was appropriate because the defendants had acted as litigants in person for much of the pre-trial period. That allowance had limits and did not justify disregarding the need for timely compliance with case-management orders. The claimant’s age and the readiness of the claimant and fourth defendant to proceed were additional factors in the balance.
6. The amendments did not, by themselves, require an adjournment. The defendants had not established a sufficiently strong reason to delay the trial. Costs of the applications were ordered to be paid by the first, second and third defendants, subject to detailed assessment if not agreed. Permission to appeal was refused.

Not stated in the judgment.