Innovate Pharmaceuticals Limited v University of Portsmouth Higher Education Corporation

In deciding a last-minute application to adjourn a trial, the court must balance the need for a fixed trial date and efficient use of court resources against any risk of irredeemable prejudice to a party whose preparation has been disrupted.

Late or defective trial bundles do not, by themselves, justify an adjournment. The court should examine the parties’ conduct, the reasons for delay, whether its consequences can be overcome, the effect on a fair trial, any specific trial difficulties, and the consequences of adjournment. Where the relevant documents were previously disclosed and the legal team can identify and prioritise the material needed for trial, disruption may be insufficient to establish prejudice warranting an adjournment.

The claimant brought a substantial claim concerning an agreement for laboratory research, alleged misrepresentations, an article and corrigendum, contractual liability, dishonesty, limitation and loss. The trial was listed to begin on 2 October 2023.

The defendant applied urgently to adjourn, principally because the trial bundles, especially the disclosure bundle, had been provided late, contained all disclosure, included duplicates and remained subject to revision. The defendant contended that its preparation had been irredeemably compromised. The claimant opposed the application. The central issue was whether the bundle problems created sufficient prejudice to require the trial to be adjourned.

1. Application refused. The trial was not adjourned. Costs were ordered to be in the case.
2. The court applied the principles identified in Fitzroy Robinson v Mentmore Towers [2009] EWHC 3070 (TCC), drawing on Boyd and Hutchinson (a firm) v Foenander [2003] EWCA Civ 1516. The relevant considerations included the parties’ conduct and reasons for delay, the extent to which the consequences could be overcome before trial, whether a fair trial had been jeopardised, specific matters affecting the trial, and the consequences of adjournment for the parties and the court.
3. The court also applied the balancing exercise described in Elliot Group v GECC UK [2010] EWHC 409 (TCC): the desirability of retaining a fixed trial date and avoiding additional cost had to be weighed against the risk of irredeemable prejudice if the trial proceeded without adequate preparation.
4. The claimant’s approach to the disclosure bundle was criticised. The trial bundle should contain only documents likely to be referred to at trial, including documents referred to in pleadings, witness statements or expert reports and selected documents from disclosure likely to be used in examination or submissions. Including all disclosure was a lazy and inefficient approach.
5. Nevertheless, the defendant’s asserted prejudice was insufficient. The relevant documents had largely been disclosed in February and had been available to the defendant’s legal team. The application was not based on a substantial body of new disclosure. Counsel could use the legal team’s prior review to prioritise relevant documents, while administrative cross-referencing and bundle corrections could be undertaken concurrently.
6. The late and imperfect bundle caused disruption, but did not remotely demonstrate irredeemable prejudice or prevent meaningful preparation. An adjournment would have caused substantial delay, further costs and disruption to court resources.