Scriven v Scriven & Ors

This is an application made on behalf of the first, second and third defendants to vacate the trial date for this matter. The trial is currently set for trial in the window commencing 13^th January 2014 with a time estimate of 12 days.

My power to grant an adjournment, if I were to accede to the application, arises under my general powers of judicial case management and, in particular, under rule 3.1(2)(b) of the Civil Procedure Rules. In exercising that power I must have regard to the overriding objective. That includes considering that the case is dealt with proportionately, expeditiously and fairly and that an appropriate share of the court resources is allotted, taking into account the need to allot resources to other cases. And, of course, since the Jackson Reforms there is a particular emphasis on ensuring that, as far as possible, cases are dealt with at proportionate cost.

It has been submitted on behalf of the defendants that one of the leading arguments in favour of my granting the application is the need for additional preparation time before the trial in order to address the amendments to the particulars of claim that were allowed by Master Price at the case management conference in October of this year, but perhaps even more significantly, the amendments that I allowed when the application to amend the particulars continued as part of the case management conference before me on 27^th November 2013. On that occasion I allowed amendments which are highlighted on the marked copy of the amended particulars of claim on various pages including pages 8, 13, 14, 15, 18, 19, 20 and 26, particularly the latter pages.

My attention in that regard was drawn particularly to the amendments set out on pages 19 and 20 of the amended particulars of claim, that is paragraph 64.7 setting out an alternative head of loss of the claimant. It was suggested by Mr. Bogle, on behalf of the defendants, that these amendments could have been made a long time ago and that the introduction of them in October 2013 and then November 2013 (when they were finally considered) was an introduction at the eleventh hour and that in effect those amendments mean that this trial is on an entirely different footing from the footing it was on prior to the amendments being allowed.

Mr. Bogle also took me through the difficulties that the defendants have had in obtaining expert assistance, a forensic expert to address the issues raised by the particulars of claim including the amendments and their decision initially to try to, in effect, ride on the coat tails of the fourth defendant’s expert, BDO LLP, but that did not prove possible. It would have been advantageous had that been possible from a costs point of view and, presumably also, from a point of view of expedition but BDO took the view that they would have a conflict representing any of the defendants other than the fourth defendant. I am told that the first, second and third defendants were concerned also about the cost of that expert, at which point they then approached a Mr. David Kirk. In fact I was told by Mr Bogle that the first to third defendants approached Mr Kirk on a parallel track. I do not have evidence before me of when he was approached but, presumably, it was some time after 27^th November 2013 and some time before be replied in the letter to which my attention was drawn, his letter of 18^th December, in which he said that he would not be able to complete an expert’s report before the end of January 2014. So Mr. Bogle says the fact that the expert is not able to produce a report in time for trial prejudices his clients. He underlines that prejudice by referring to the fact that the claim was estimated originally to be £200,000 but now is estimated to be £3 million as a result of the amendments that were made in October and November to the particulars of claim.

I was also taken through the efforts that the defendants have been making, in particular the second defendant who has taken the lead (for reasons that were explained), in relation to disclosure and, in particular, the efforts that were being made to obtain e-mail messages from AOL. Some of that correspondence was reviewed during the hearing before me on 27^th November. Mr Bogle this morning took me through the subsequent correspondence as well as communications with other third parties, for example, Mr. Meredith of Busbys seeking additional documentation, the e-mail to Council House Developments of 4^th December 2013, a letter to Spintime LLP of 12^th December 2013 which concerned obtaining disclosure arising out of the witness statement of Mr. Baker and where the second defendant felt that Spintime potentially had documents that would help the first, second and third defendants correct what they considered to be a not entirely accurate characterisation of events in the witness statement of Mr. Baker. My attention was directed to various other letters, e-mails and so on where the second defendant was seeking to get additional disclosure complying with his understanding of standard disclosure having now had advice which, prior to November 2013, the first, second and third defendants feel they did not have in relation to the scope of standard disclosure and also their ongoing duties of disclosure.

Concerns were raised as well this morning about the correspondence between the parties leading up to the applications which I have heard this morning. I do not think it is necessary for me, for the purposes of this ruling, to go into the ins and outs of that, but I have heard what counsel for both the first, second and third defendants and counsel for the claimant have had to say about that. I think it is fair to say that both sides acknowledge that time is tight ahead of the current window for trial in January 2014.

In response, Mr. Weatherill QC, on behalf of the claimant, says in relation to the lateness of the amendments that the bulk of the amendments were first proposed in July of this year. Amendments dealing with damages were advanced in October. Master Price did not reach those amendments in mid- October and therefore it fell to be considered by me on the first occasion that the the court was able to list the continuation of the CMC, namely, 27^th November when the matter came before me. Mr. Weatherill says in relation to those amendments that they are unlikely to result in any more disclosure issues and in any event the first, second and third defendants have had notice of the bulk of them, as I said, since at least July of this year and in relation to damages from October.

In relation to the disadvantages of the first, second and third defendants being for much of the time litigants in person, although they on the last occasion and this occasion are represented by counsel, they are not assisted by solicitors because counsel is Direct Access counsel. It is right that some slack needs to be cut for litigants in person but Mr. Weatherill suggests that there needs to be a limit to that; the defendants have known of the trial date for a long time; there have been previous orders for disclosure; and ignorance of the rules is really not a proper excuse for litigants in person bearing in mind the need, as I mentioned a moment ago, for lack of a better phrase, “to cut them some slack”.

In terms of the submissions that Mr. Bogle had made in detail regarding the efforts that, in particular, the second defendant had been making in relation to disclosure but also the difficulties that it was having now getting disclosure from certain third parties, Mr. Weatherill commented that this was really no one else’s fault but the defendants at this stage; they will have to fight the trial for better or worse on the information that is available to them at the time of the hearing. In relation to Mr David Kirk, and more generally in relation to the access of the first, second and third defendants to their own expert for the purposes of the trial (this is really my comment because Mr. Weatherill did not actually say this), I think it is clear that their not having their own expert report available for trial is a potential prejudice to the defendants. In relation to this issue, though, Mr. Weatherill said that it is clear that the defendants did not act with expedition after the hearing on 27^th November 2013. They could have foreseen that BDO would have difficulties acting and the fact that Mr. Kirk responded on 18^th December suggests that they had not contacted him as expeditiously as they could have after 27^th November. But in any event they should have sorted this out months ago. There was an order providing a timetable for forensic accountants’ reports going back to July. So that would have been needed even before the amendments that were approved in November.

In relation to Mr. Bogle’s own scheduling difficulties in relation to the trial window, the defendants have known the trial window for a long time and it is not fair that the possible lack of availability of Mr. Bogle should be given too much weight in the overall decision as to whether or not the trial dates should be vacated.

In relation to the law, in addition to the Civil Procedure Rule 3.1(2)(b) - to which I have already adverted and the related commentary in the White Book - my attention has been drawn to a decision of Coulson J in the Technology and Construction Court, Fitzroy Robinson Limited v. Mentmore Towers Limited [2009] EWHC 3070 (TCC) and, in particular, to paragraphs 8 and 9 of that judgment.

I have not found this an easy application. I am conscious that for much of the pre-trial proceedings in this matter the first, second and third defendants have been acting as litigants in person and I do need, I think, to take that carefully into account. There is clearly a balancing of factors that I need to undertake in light of the overriding objective and helpfully Coulson J has summarised the key principles. Mr. Bogle drew my attention to the fact that the facts in that case are quite different from the facts in this case and I acknowledge that However, I do not think that that affects the summary of the law in paragraphs 7 and 9 and the factors that I should take into account in relation to that.

In short, I am not going to grant the application to vacate the trial dates. I appreciate that the defendants have had difficulties. I appreciate that there were amendments agreed in November but it seems to me that there have been clear failures by the defendants over a long period of time, many months predating the hearings in October and November, that have given rise to difficulties in relation to disclosure. I am of the view that (to use a phrase that has been used already this morning a couple of times) in that regard the defendants are the authors of their own misfortune.

Clearly all parties are going to be under pressure at this point to adhere to the trial timetable but that has been true for some time. The claimant is prepared to proceed. The fourth defendant is prepared to proceed. As I say, having had regard to the overriding objective, proportionality, expedition, fairness and so on, I just do not believe that I have heard a sufficiently strong reason to delay the trial. I do not accept that the amendments in themselves require that. I also do bear in mind that the claimant is 77 years old. That is a factor. It is clearly not the most important factor but it is something that I weigh in the balance along with everything else and the consequences of an adjournment to the claimant, the defendants and the court.

For those reasons I am not granting the application to vacate the trial dates.

I am going to exercise my discretion in relation to costs by agreeing with the proposal of Mr. Weatherill; for the costs to be subject to a detailed assessment if not agreed by the parties in relation to each application and to be paid by the first, second and third defendant to the claimant