Midal Cables Ltd v Amec Foster Wheeler Group Ltd

A trial date in the Technology and Construction Court should be vacated only in exceptional circumstances. Increased disclosure volume will not ordinarily justify vacating a fixed trial where the disclosure obligations arise from existing orders, the work was foreseeable, and compliance remains practically achievable. A party’s unwillingness to devote sufficient resources or incur the necessary expense is materially different from an inability to comply. The court may adjust intermediate procedural deadlines while retaining the trial date and the existing disclosure obligations.

Midal Cables Ltd brought proceedings against Amec Foster Wheeler Group Ltd, which counterclaimed. Amec applied shortly before the hearing to vacate a trial listed for March 2020, relying principally on the volume and difficulty of disclosure and seeking, in substance, relief from existing disclosure orders.

The court considered the procedural history, the timing of the disclosure guidance hearing, the parties’ agreed search terms, and the detailed financial particulars in the counterclaim. The central issue was whether the asserted disclosure burden amounted to an exceptional circumstance justifying loss of the fixed trial date.

1. The application was refused in substance. The March 2020 trial was retained, and the court was not prepared on the material before it to remove or relax Amec’s obligation to comply with the existing disclosure orders. Some changes to the dates of intervening steps could be considered.
2. Trial dates in the Technology and Construction Court are set substantially in advance and are vacated only in exceptional circumstances. The asserted volume of disclosure did not meet that threshold.
3. The relevant disclosure guidance hearing had taken place more than two months earlier, while the original directions order had been sealed more than six months earlier. The disclosure work was therefore not a new or unforeseen obligation.
4. The search terms had originally been agreed by the parties. Criticism of Midal for failing to narrow them was consequently rejected.
5. The detailed and highly particularised sums pleaded in Amec’s counterclaim demonstrated that the underlying documents should have been available and that the scope and number of documents were reasonably foreseeable. The work was routine and ordinary for the case, including the documents relating to the counterclaim.
6. The court distinguished between a party being unable to comply with an order and being unwilling to devote sufficient resources or expenditure to compliance. Amec could comply if it properly resourced the case, including by allocating the necessary paralegal support.
7. The application was also viewed in the context of Amec’s previous conduct in progressing the litigation and criticism previously made by several Technology and Construction Court judges. The court stated that this pattern of behaviour was not to be encouraged.