Travelport Ltd & Ors (The "Enett Claimants") v Wex Inc

Expedition and the ordering of preliminary issues are matters of judicial discretion. The court must assess objectively whether there is good reason or urgency, whether the case can be fairly tried, prejudice to the parties and other court users, and any special procedural factors.

A preliminary issue may properly be ordered where it can dispose of the whole or part of the dispute, materially reduce costs or preparation, focus the trial, and avoid unfairly fettering the court or parties. An unusual preliminary-issue trial, including expert evidence, may be appropriate where it is central to the dispute and can be managed by a robust timetable.

Two related proceedings were brought against WEX Inc by the eNett Claimants and the Optal Claimants. The applications concerned expedition and the ordering of preliminary issues in substantial commercial claims involving a proposed transaction, contractual financing arrangements and alleged prejudice arising before completion.

The court had previously declined to order an expedited full trial because the issues were insufficiently focused and the proposed timetable could not fairly accommodate the case. Following repleading, the parties had identified a meaningful list of issues and broadly agreed that selected issues could be determined speedily. The central questions were whether expedition was justified, whether preliminary issues should be ordered, and what timetable and trial scope were fair and practicable.

1. Expedition. The court treated expedition as discretionary. It considered whether there was objectively good reason or urgency, whether expedition would interfere with the fair administration of justice, prejudice to the opposing party or other court users, and any special factors, including procedural history and delay. The claims were important and involved some urgency, including a contractual financing expiry, possible inadequacy or limitation of damages, and continuing commercial constraints. They were not, however, the most compelling form of urgency.
2. Preliminary issues. Applying the questions identified in Steele v Steele [2001] CP Rep. 106, the court concluded that the proposed issues could potentially dispose of the case or a key part of it, reduce costs and time, and focus the dispute. The fact that the trial would be an unusual preliminary-issue trial involving expert evidence did not prevent it being ordered. It was unlikely to create substantial overlap with any later phase and would not unfairly fetter the parties or the court.
3. Case management. A robust timetable was more important than gaining approximately seven days on the start date. The court rejected the proposed earliest timetable as insufficiently realistic, particularly in relation to disclosure, witness statements, expert evidence and August working conditions. Expert reports should be simultaneous rather than sequential.
4. Orders. Preliminary issues were ordered on an expedited basis, with the trial fixed for 21 September 2020. Issue 9 was excluded from the trial, although consequential submissions on issues 13 and 14 could be made insofar as they followed from the ordered determinations. The claimants were ordered to pay 50% of the defendants’ costs of the previous hearing.