Sloutsker v Romanova

Where a fixed-date hearing cannot fairly or efficiently proceed because necessary preparation has not been completed, the court may vacate the hearing and give directions for relisting. In exercising that case-management power, the court should consider both parties’ interests, the risk of wasted costs and the practical consequences of uncertainty about participation.

An application for permission to adduce expert evidence must comply with CPR 35.4(2), including provision of an estimate of the proposed expert-evidence costs. Without that estimate, the court cannot properly consider whether to limit the recoverable fees and expenses under CPR 35.4(4).

The claimant brought a libel action concerning publications and broadcasts attributed to the defendant. The defendant applied for declarations that the English court lacked jurisdiction, or should not exercise it, and for orders setting aside service and the claim documents.

The application was listed for hearing on 21 January 2015. Shortly before the hearing, the claimant changed solicitors and proposed an adjournment so that evidence, including possible expert evidence on service in Russia, could be prepared. No hearing bundle was lodged, the defendant ceased to be represented, and communications about the proposed adjournment were delayed. The central issue at this stage was the appropriate case-management response.

1. The defendant’s application was not determined on its merits. The hearing was vacated and the application was re-listed for 27 February 2015, with directions for further evidence, the hearing bundle and skeleton arguments.

2. The court was entitled to act without a hearing because the impending hearing was surrounded by uncertainty, the required bundle had not been lodged, and substantial costs might otherwise be incurred for a hearing that could not proceed. The order was subject to an opportunity for the defendant to apply to set it aside or vary it.

3. The claimant was directed to prepare the bundle because the defendant was acting in person. No permission was granted at that stage for expert evidence. Any application for such permission had to be issued and served by 4pm on 26 January 2015, with an opportunity for the defendant to respond by 4pm on 2 February 2015.

4. The claimant had not complied with the mandatory requirement in CPR 35.4(2) to provide an estimate of the costs of the proposed expert evidence. That omission prevented the court from properly considering the power under CPR 35.4(4) to limit the amount of expert fees and expenses recoverable from another party.

5. The claimant was ordered to pay the costs of the directions hearing and the costs caused by, or thrown away by, the vacation of the hearing date. Although the defendant had acted unreasonably in several respects, the claimant bore the greater responsibility for the ineffective hearing because he had failed to prepare evidence or make the necessary expert-evidence application in good time.

This was a first-instance case-management decision. The defendant’s jurisdiction and service application remained to be heard.