Guy Christopher Westgate & Anor v British Airways PLC & Ors

A case-management application should identify a practical method for narrowing the issues and should be supported by sufficiently clear grounds. Where pleadings and an agreed list of issues already define the matters requiring evidence, a further Scott schedule need not be ordered if it would not assist. An unless order concerning responsibility for costs incurred in foreign proceedings should not be made without a properly identified legal and procedural basis, and the precise relief sought should be stated clearly. The court may dismiss the application while indicating that parties should reasonably assist with obtaining material from another jurisdiction.

The claimants applied for an order requiring them to file a Scott schedule, with responses from the defendants, and for an unless order concerning the first defendant’s consent to disclosure through proceedings in the United States and responsibility for the associated costs.

The court considered the existing pleadings, including the Master Particulars of Claim and Defence, and an agreed list of issues. The application was heard after discussions between the parties had resulted in some progress.

1. The application was dismissed in its entirety.
2. A Scott schedule was not required. The proposed schedule would not assist in narrowing the issues, particularly because the first defendant did not consider it helpful. The existing pleadings sufficiently identified the matters in dispute, and the agreed list of issues, to be incorporated into the order, sufficiently identified the issues on which witness and expert evidence would be directed.
3. The parties should proceed with preparation for trial. Although the defendants did not seek to prevent the claimants obtaining material from the United States, they should do what they reasonably could to assist without exposing themselves to costs in that jurisdiction.
4. The proposed unless order was misconceived. The application did not sufficiently identify either the basis on which the order was sought or the basis on which the court could make it. The claimants should, in any further approach, state clearly what they sought from the defendants and preferably provide the proposed wording itself. The judge expressed serious doubts that the court had power to make an order of the proposed kind, but it was unnecessary to decide that question because the application was not pressed.