Stagecoach East Midlands Trains Ltd & Ors v Secretary of State for the Department of Transport (Re 2019 Rail Franchising Litigation)

On an application to adjourn a fixed trial, the court must balance the legitimate expectation that the fixture will be maintained against the risk of an unfair trial. The applicant bears a heavy onus of showing a real and present risk of irremediable unfairness. Heavy disclosure, witness and expert work do not by themselves justify an adjournment where competent and diligent preparation remains feasible. In procurement litigation, substantial weight should be given to the public interest in prompt determination, particularly where quashing or other public-law relief remains sought. The court may retain the trial date for a discrete group of issues where that can be done fairly, even though other issues must be tried later.

The claimants challenged their disqualification from rail franchise competitions and sought relief including declarations and orders affecting the franchise awards, as well as damages. The trial was fixed for January 2020. The defendant applied to vacate that fixture, relying on the scale of disclosure, amended claims, witness and expert evidence, trial preparation, and an impending appeal.

The claimants accepted that the January period could not accommodate all liability issues, but proposed trying the common pensions-related liability issues then and postponing the remaining issues. The central question was whether a pensions-only trial in January would create a real risk of an unfair trial, weighed against the interests of retaining the fixture.

1. Application determined. The January 2020 trial period was retained for the pensions-related liability issues. The remaining liability issues were deferred. The issue whether any breach was sufficiently serious to justify remedies was excluded from the January trial.
2. The governing exercise was the balance identified in Elliott Group and others v GECC UK and others [2010] EWHC 409 (TCC): the desirability of maintaining a fixed fixture and avoiding additional costs was weighed against the risk of irremediable prejudice caused by inadequate preparation. Parties and the court have a legitimate expectation that trial fixtures will be kept, and the party seeking an adjournment bears a heavy onus.
3. The public interest carried substantial weight. Procurement disputes require expedition, especially where a claimant seeks to set aside a public decision. Prompt determination also serves the public interest where the lawfulness of a ministerial decision has wider ramifications, even if the ultimate remedy is financial.
4. The defendant had not shown a real and present risk of an unfair trial. The pensions issues were substantial, but remained within the range of heavy commercial and public-law litigation. The lead witness was knowledgeable and already being proofed. It was unnecessary for witnesses to review all disclosed documents; the genuinely material documents should be identified.
5. The absence of an appointed expert was surprising but did not establish that the existing timetable could not be met. A future failure, despite reasonable competence and diligence, might justify reconsideration, but that contingency had not arisen.
6. The administrative burden of preparing electronic bundles was recognised, but incremental preparation and early identification of material documents could address it. The present logistical burden did not establish unfairness.

Not stated in the judgment.