Fujikura Ltd & Anor v Sterlite Technologies Limited

A trial listing should rarely be revisited. A listing officer may take account of the availability of clients and client representatives, even though the Chancery Guide expressly refers to counsel, experts and witnesses. The Guide is a practical guide, not a statutory instrument, and its wording does not create a hierarchy which makes client attendance subordinate to other considerations. A second application requires a clear and pressing reason, such as a material failure in the listing process, manifest unfairness or bad faith. Parties are expected to advance genuine and honest availability information. Unparticularised commercial uncertainty, or a later challenge to information that was not disputed at the listing appointment, will ordinarily not justify intervention.

The claimants brought patent infringement proceedings concerning a fibre-optic cable, defended by denials and a claim for revocation. By consent order dated 24 June 2024, the trial was to be fixed within the then-current window of 1 July to 30 November 2025. At a listing appointment, the trial was fixed from 6 October 2024 after the defendant’s representatives were said to be unavailable in July.

The claimants later applied under paragraph 12.12 of the Chancery Guide to move the trial into July. They challenged the basis for the defendant representatives’ unavailability and relied on alleged commercial uncertainty. The issues were whether the listing officer had properly been entitled to take client attendance into account and whether the later material justified intervention.

1. Application dismissed. The October 2024 listing remained in place.
2. Paragraph 12.18 of the Chancery Guide requires the listing officer, so far as practicable, to consider the availability of counsel, experts and witnesses, while seeking speedy disposal. It does not operate like a statute and does not exclude, or subordinate, the attendance of clients and client representatives as a relevant listing consideration.
3. A listing officer is entitled to accept availability information at face value, subject to limited probing of obvious oddities, implausibilities or insufficiencies. The officer is not generally required to conduct detailed investigation or cross-examination. The parties should make genuine and honest submissions about availability.
4. A second challenge to a listing decision should be rare. Intervention may be justified where something clearly went wrong in the process, manifest unfairness resulted, or there is evidence of bad faith. Otherwise, listing decisions should stand and the listing process should not become satellite litigation or tactical manoeuvring. The court applied the approach stated in DISH Technologies LLC v Aylo Premium Limited [2024] EWHC 1310 (Pat).
5. The claimants had not challenged the generalised assertion of unavailability at the appointment. The later challenge would have required investigation unsuitable for the listing process. The alleged commercial uncertainty was insufficiently particularised and had not been advanced when the consent order was made. The application therefore did not disclose a clear and pressing reason for changing the date.
6. The defendant’s application for indemnity costs was refused. Although the application was discouraged and not particularly worthy, it was not beyond the norm required for indemnity costs.