Bates & Ors v Post Office Ltd

In complex group litigation, hearings should be fixed by reference to the needs of the litigation and the court’s timetable, rather than counsel’s professional diaries. The court must actively manage proceedings so that they are conducted expeditiously, fairly, efficiently and at proportionate cost. Reasonable notice of a diary conflict will ordinarily enable a party to arrange replacement representation. A short postponement may be unacceptable where it risks cumulative delay, increased costs or apparent unfairness between parties. The parties and their legal advisers must co-operate with the court and further the overriding objective. Persistent inefficient conduct may justify severe costs consequences.

This was a case-management ruling in group litigation concerning claims by more than 500 current or former Post Office branch operators arising from alleged defects in the Horizon accounting system. A substantive hearing had been fixed for November 2018. Leading counsel for the defendant sought to move it to 2019 because of a conflicting three-week trial in the Companies Court. The claimants did not oppose the application. The central issue was whether the hearing should be re-listed to accommodate counsel’s availability.

1. Application refused. The hearing would not be moved from November 2018 to 2019.
2. The court’s approach to listing must reflect the overriding objective. CPR Part 1.1(2)(d) required the case to be dealt with expeditiously and fairly. Active case management under CPR Part 1.4(1) included fixing timetables under CPR Part 1.4(2)(g) and giving directions to ensure that trial proceeded expeditiously and fairly under CPR Part 1.4(2)(l). Group litigation under Practice Direction 19B remained subject to that framework.
3. Hearings, particularly substantive trials, should not ordinarily be organised around the diaries of numerous barristers. If that approach were adopted, delay would tend to accumulate throughout the litigation. The court was entitled to give greater weight to the interests of all parties, the administration of justice, the public importance of the proceedings and the need to control costs.
4. The possible loss of counsel of choice did not outweigh those considerations. The litigation was group litigation, in which not every claimant had chosen their own legal representatives. With reasonable notice, suitable replacement representation could generally be arranged.
5. The parties had a duty under CPR Part 1.3 to help the court further the overriding objective. Failures to respond, disclose documents, lodge material and conduct the litigation constructively were criticised. A fundamental change of attitude was required, and continued failures could lead to draconian costs orders. A further 20-day substantive hearing was accordingly listed for 11 March 2019.