LtCol Ian Foxley v Ministry of Defence & Ors

Where applications cannot be fairly and properly determined within the time available, the court may adjourn them of its own motion under Civil Procedure Rules 1998, rule 3.1. The overriding objective and the interests of justice require sufficient time for the court to read the evidence, hear the parties and address complex factual and legal issues. Related applications should ordinarily be heard together where their issues and evidence substantially overlap. It may be unfair and contrary to the overriding objective to begin a hearing on a part-heard basis where a lengthy gap before continuation would increase cost, duplication and difficulty for the judge. Delay to a claimant is an important consideration, but may be outweighed by the need to avoid rushing high-stakes applications and to relist them with a realistic estimate of hearing and pre-reading time.

The claimant brought claims, principally in tort, against the Ministry of Defence, the Department for Business and Trade, GPT Special Project Management Ltd and Airbus SE. The claims concerned alleged corruption connected with the SANGCOM Project and included unlawful means conspiracy, joint enterprise, misfeasance in public office, negligence and a contractual claim against GPT.

The Government Defendants and GPT applied for summary judgment under Part 24 of the Civil Procedure Rules 1998 on limitation grounds. Airbus applied under rule 11(1) for a declaration that the court had no jurisdiction to try the claim against it, also relying on limitation. The claimant relied principally on section 32(1)(a) and (b) of the Limitation Act 1980.

Shortly before the hearing, the Government Defendants issued public interest immunity, confidentiality, and related relief-from-sanctions applications. Those applications occupied almost two days. The issue was whether the remaining time was sufficient, or whether all the summary judgment and jurisdiction applications should be adjourned.

1. The summary judgment and jurisdiction applications were adjourned for relisting on a future date with a realistic hearing estimate and appropriate pre-reading time.

2. The court had power to order an adjournment of its own motion under rule 3.1 of the Civil Procedure Rules 1998. The absence of a formal application did not prevent the court from addressing the issue.

3. The public interest immunity and confidentiality applications had properly been dealt with first. They involved derogations from open justice and required careful consideration, including closed or private hearings. Their duration left insufficient time for the substantive applications.

4. Airbus’s jurisdiction application could not fairly or realistically be separated from GPT’s summary judgment application. The issues and evidence substantially overlapped, and separation would cause duplication and prejudice.

5. A part-heard hearing was unsuitable. A lengthy gap before continuation would increase expense, duplication and difficulty for the judge, and would not serve the overriding objective or the interests of justice.

6. The claimant’s prejudice through delay was significant, particularly because the claims could not proceed until the applications were determined. Nevertheless, that prejudice was outweighed by the need to give adequate time to determine high-stakes applications involving extensive evidence, complex limitation issues under section 32 of the Limitation Act 1980, and detailed factual inquiries into knowledge, concealment and fraud.

7. The original three-day estimate had become unrealistically short. Even without the later applications, the volume of evidence, the competing factual and legal issues, and the need to address whether the applications involved a mini-trial made an adjournment likely.

First-instance procedural ruling. The judgment records that the summary judgment and jurisdiction applications had been ordered to be heard by a High Court judge, but no prior judgment determining their merits is stated.