Lionel Richardson v (1) Glencore Energy UK Ltd (2) Glencore International Ltd (3) Appleby Trust (Jersey) Ltd (4) Glencore Energy UK Ltd [2014] EWHC 3990 (Comm)
Solicitors were reminded of the importance of oral case management hearings in the Commercial Court and of adhering to the requirements of the Admiralty and Commercial Court Guide when making a request for a paper case management hearing.
The court heard a case management conference in an action concerning the employment rights of a senior commodities trader.
During the afternoon prior to the CMC, a letter had been emailed to the court on behalf of all the parties. It stated that agreement had been reached on the list of issues, the case memorandum and the pre-trial timetable, which were all enclosed. The parties’ representatives sought the court’s confirmation as to whether their attendance was required at the CMC. In the event, they were all in attendance.
The judge held that the letter demonstrated a failure on the part of all the parties to appreciate the role and importance of CMCs. It also demonstrated a failure to comply with the special provision made for case management in the Commercial Court by CPR r.58.13, CPR PD 58 and the Admiralty and Commercial Court Guide.
The special provision was described in detail in Section D of the Guide, and the general rule was that there had to be an oral CMC. The Guide recognised that in some out of the ordinary and straightforward cases it might be possible to dispense with an oral hearing. The special procedural requirements to be followed in such circumstances included a requirement that papers be lodged by noon on the day that was two clear working days prior to the date of the CMC.
A late request was, in the court’s experience, a symptom of problems with preparation. Such problems included difficulties or failures in getting to grips with the case well in advance of the CMC, giving proper consideration to what the real issues were and working out in practical terms how determination of those issues at trial could be best assisted by appropriate pre-trail directions. Further, late requests could cause disruption to the orderly conduct of the court’s work.
If parties made a late request for a paper CMC, they had to recognise the degree to which they were imposing on the court and, in particular, that they ran the risk of sanctions. The Guide took the trouble to set out and explain the requirements for several reasons.
First, a fixture was given so that the case could be considered at the case management stage by a judge who would otherwise be dealing with other cases. If, exceptionally, the fixture was not needed, sufficient notice ought to be given to enable the fixture to be given to others with an urgent need for it.
Second, it was in the interest of all court users that an oral CMC took place so that a judge could take a constructive look at the case and give practical and just directions with a view to efficient preparation for the trial.
Third, late requests could cause considerable disruption. In the instant case, there had been a failure to give proper consideration to s.D8 of the Guide.
The judge in charge of the case had previously asserted that the complexity was so great, including as to expert evidence on Swiss law, that a designated judge ought to be appointed. Moreover, the parties had failed to comply with the confirmation required by s.D8.3(e) and the time limit at s.D8.3(e).
There was no explanation for those failures. Further, the proposed list of issues filed by the parties had failed to identify key matters, including what issues of Swiss law arose and why, which ought to have been possible where it was said that expert evidence of foreign law was relevant. In appropriate cases, failure to comply with the requirements of the Guide could and would be marked by sanctions in furtherance of the overriding objective.
The court did consider ordering that each side paid their own costs of the CMC but instead ordered that they paid the costs of the transcript of the judgment. This was not an indication that a more severe order was not appropriate or that a more severe order would not be made in future.
The court further directed that fresh statements of case be filed.
However, nothing in the judgment was intended to dissuade or criticise those who, after proper consideration, agreed that a request for a paper CMC ought to be made, met the requirements as to the supply of documents and lodged them in good time (see paras 3-21 of judgment).
