Apache Beryl I Ltd v Marathon Oil UK LCC & Ors

An application for an expedited trial is discretionary. The court should consider whether there is objective urgency, the state of the list, the procedural history including any delay, and prejudice to the respondent. The possibility of a fair trial is critical. Where a fair trial can be accommodated, the court should facilitate the prompt resolution of an important commercial dispute, while balancing the interests of other litigants and the requirements of justice and fairness. Delay in seeking expedition is relevant but need not be decisive, particularly where refusing expedition would be disproportionately penal.

The claimant sought an expedited trial of its dispute with the defendants concerning whether it had provided reasonable assurances required before assigning its interests in infrastructure governed by the Scottish Gas Evacuation System Heads of Agreement. The proposed transaction was subject to a longstop date of 21 October 2017, creating a risk that the purchaser would terminate if the dispute remained unresolved.

The claimant applied in August 2017 for a four-day trial at the beginning of the following term. The defendants opposed expedition. The issues appeared limited, but the pleadings were unclear, disclosure had not occurred, and the claimant had known of the longstop date for several months. The central question was whether an expedited and fair trial could be held before the transaction was lost.

1. Application granted. The trial was fixed for 16 October 2017, with an estimate of four days, and an urgent case management conference was directed.
2. The decision to order expedition was discretionary. The relevant considerations were:
   • whether there was objective urgency;
   • the state of the court’s list;
   • the procedural history, including delay by the applicant; and
   • whether expedition would cause irremediable prejudice to the respondent.
   The authorities indicated that prejudice and the possibility of a fair trial were the most important considerations.
3. Applying W.L. Gore & Associates GmbH v Geox SpA [2008] EWCA Civ 62, the court should assist commercial parties in resolving disputes promptly, consistently with the interests of other litigants, justice and fairness. It would be inappropriate to order an unfair trial, but where a fair trial was possible and the list could accommodate it, the approach supported expedition.
4. There was objective urgency because the longstop date created a real risk that the transaction would fail. The claimant’s delay in seeking expedition counted against it, but refusal on that ground would be disproportionately penal if expedition was otherwise appropriate. The state of the list was a concern, although vacating another trial could be justified only as a last resort.
5. A fair trial was possible. The dispute could be reduced to the assurances required, whether those requirements were reasonable, and whether delay or other matters affected the defendants’ entitlement to require them. Disclosure, factual evidence and expert evidence were likely to be limited. The reasonableness of the assurances was for the court, not experts.