Late Agreement to Avoid Case Management Conferences

02 September 2015

The introduction of the amended CPR and costs regime on 1 April 2013 brought greater emphasis on the need for case management to ensure the new overriding objective was complied with. Proportionality (including costs) is now entrenched in the process. For district judges and other members of the judiciary, there is a greater importance placed upon the hearing of case management conferences (“CMCs”) and case management in general. The Jackson reforms are far more interventionist despite claiming to simplify matters. The costs budgeting system is an extra layer of cost that is testament to that.

I have attended a number of Case Management Conference’s (CMCs) in recent months that were completely unnecessary and it was a pity the parties were unable to agree straightforward directions on commercial multi-track and fast track cases.  Furthermore, there are some hearings that are ordered by judges giving early directions that are simply not needed.  Full time judges groan at the orders of inexperienced deputies requiring unnecessary hearing.

For the parties there is a clear incentive to avoid the unnecessary cost of such a hearing and often efforts to do so occur at the last minute.  However, the case of Richardson v Glencore Energy UK Ltd [2014] EWHC 3990 (Comm) in the Commercial Court of the Queens Bench Division before Walker J, it is a timely reminder of the approach parties should have to agreeing the terms of such a hearing at the last minute.

This was a matter that was heard in November concerning an action regarding employment rights of a senior commodities trader.  The day before the CMC, the parties agreed and sent an email to the court stating the parties had agreed the list of issues, the case memorandum and the pre-trial timetable.  These were all emailed to the court as attachments. They sought permission for the parties not to attend, but only at the eleventh hour.  I suspect they had no reply from the court (something practitioners will be familiar with) as all the representatives attended.

Mr. Justice Walker was unimpressed by the attitude of the parties and in particular emphasised the wording of section D of the Commercial Court Guide that the general rule was that there should be an oral CMC in every case, save in the most straightforward of cases.  However, for that to be done, the Guide laid down strict requirements for the papers to be lodged by noon, two clear working days prior to the hearing for the judge to have the chance to consider the application properly The afternoon before the hearing was wholly insufficient and the court is quick to note that it disrupts expensive court time when such adjournments are sought at the last moment.

This particular case was not straightforward and included experts on Swiss law.  A previous judge had considered it to be a very complex case and therefore there was a wholesale failure to have regard to section D8 of the Guide.  Furthermore, the proposed directions and documents failed to attend to significant aspects of the case.

Whilst this case deals with the particular guidance for the Commercial Court, it has continued application for parties to CMCs in general and the need to ensure the rules are complied with.  The Court will be very unhappy if a CMC is dispensed with by consent and then at trial an adjournment is needed because of a failure in case management. That would likely be disproportionate in court time and with regards to cost.  Walker J was at pains to emphasise that he did not wish to put parties off making such applications in appropriate cases, but nevertheless wished for parties to ensure that their case was one that was could be adjourned without consequence.

Marcus is a commercial barrister at EA Law – East Anglian Chambers.  If you would like to instruct Marcus Croskell or another member of the commercial team, please contact his clerk Fraser Mclaren on 01473 214481 or email him HERE.

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