WILMINGTON TRUST, NATIONAL ASSOCIATION v MR HSIN CHI SU (AKA MR NOBU SU/MR NOBU MORIMOTO/MR NOBUYOSHI MORIMOTO/MR SU HSIN-CHI)

An adjournment application made after a summary judgment hearing has concluded will ordinarily fail where the applicant could have sought relief before or at the hearing, has not identified the material sought with sufficient precision, and cannot show realistic relevance or prejudice. A procedural rule requiring evidence in reply may prescribe the time for filing such evidence without imposing an obligation to file it. Complaints about missing documents or authorities do not justify an adjournment without demonstrated practical prejudice.

The claimant applied for summary judgment to enforce at common law a judgment of a United States District Court in Texas. It also sought directions concerning the defendant’s counterclaim, including dismissal or a stay on jurisdictional and forum grounds.

After the two-day substantive hearing had concluded and judgment was due to be delivered, the defendant, who was detained for contempt of a worldwide freezing order, applied orally for an adjournment. He relied on alleged deficiencies in access to bundles, transcripts, authorities, chronologies and contractual documents, and on the need to obtain further evidence.

The issue was whether the hearing should be reopened or adjourned for those purposes.

1. Application dismissed. The defendant’s application to adjourn, made after the summary judgment hearing had been fully argued, failed.
2. CPR 58.13.1(3) provides that, where evidence in reply is to be filed and served, it must generally be filed within the prescribed period after evidence in answer. Read with CPR 58.13(2), the rule is permissory rather than obligatory. It does not require a claimant to file evidence in reply merely because evidence in answer has been served.
3. The complaints about the hearing bundles, transcript, authorities and skeleton argument did not establish practical prejudice. Material omitted from one bundle had not been relied upon in submissions, alleged transcript errors were typographical or related to oral submissions, and the defendant had been given an opportunity to address matters arising from the chronology.
4. Maronia v Larmer concerned a different enforcement regime and materially different legal and factual circumstances. It therefore did not assist on an application to enforce a foreign judgment at common law. The relevant authorities were those establishing the general principles governing such applications; other issues were fact-sensitive and depended on the evidence.
5. The proposed further evidence concerning alleged profits, foreign documents, bank records and original contracts was insufficiently identified and its relevance was unclear. Any material subsequently discovered might support a later application for permission to appeal or to set aside, but it did not justify delaying a hearing already concluded.
6. An application to adjourn in order to obtain potentially relevant material should be made at or well before the hearing. A late application based on speculative future access to documents, without identifying the documents, their purpose or their realistic impact, should be rejected.