Choose your submissions wisely, says judge in time-estimate warning

Cockerill: Considerable issues remain with time estimates

The judge in charge of the Commercial Court has complained again about inadequate time estimates, telling advocates they cannot ask judges to read authorities after the hearing as a shortcut.

Mrs Justice Cockerill also urged advocates to consider carefully whether “peripheral” arguments were worth pursuing if their primary points failed.

Reiterating a warning she first gave in 2020, she said cases may be stood out of the list – either before the hearing or part heard – if parties provided inaccurate hearing estimates.

In September 2020, Cockerill J and HHJ Pelling QC – judge in charge of the London Circuit Commercial Court – raised concerns about the “noticeable increase” in the number of applications and trials for which inaccurate reading and hearing time estimates had been provided.

That focused particularly on half-day hearings and in a new practice note published this week, she said it was “fair to say that the court has seen some improvement in relation to these shorter hearings”.

She continued: “However, a considerable issue remains as regards longer applications and trials. In particular, the number of points and authorities being sought to be raised is often – and increasingly – completely out of step with the hearing time listed.

“The result is that on a number of occasions counsel have either taken submissions at excessive speed (as noted, for example, in Libyan Investment Authority v Credit Suisse International [2021] EWHC 2684 (Comm) [139-140] – where experienced transcribers were unable to keep up with the pace of speech) or have sought to conduct legal argument by giving the judge a note of key passages in authorities which they would wish the judge to read and consider in depth after the completion of the hearing.”

Such practices, Cockerill J stressed, were “unacceptable”. Judgment writing time was “not sufficient to permit it to be used as an extension of the time allocated for oral argument”.

The judge said “careful consideration needs to be given to what is to be covered in the hearing time, the pace at which documents/authorities can be taken and the time needed for oral argument on the issues raised”.

This should extend to the number of issues which could “properly be dealt with in oral argument” and the number of authorities actually required in order to establish the legal propositions relied upon.

As well as the risk of the case being stood out of the list and relisted for a realistic time estimate with no expedition of the relisting, there may also be costs consequences, Cockerill J said.

“The judges of the court would also urge parties – in the interests of proportionate litigation – to give careful consideration to the number of points which are run, whether peripheral points will realistically lead anywhere if the primary points fail and which legal arguments are realistically open for argument at first instance.”

By coincidence, yesterday saw Mr Richard Salter QC, sitting as a deputy judge in the Commercial Court, warn parties in an action that they faced the sanctions set out by Cockerill J if they repeated an inaccurate estimate that saw a case listed as a half-day application before him overrun.

He made the comments at the end of his ruling on an application under part 18 for further information, in Al Saud & Anor v Gibbs & Anor [2022] EWHC 706 (Comm).

In November, Cockerill J told the defendants’ QC, who said at least a full day was required, that the parties should not need more than half a day to deal with those aspects of the further information required to make the summary judgment applications run properly.

The September 2020 notice stated that half a day was “strictly” 2.5 hours, inclusive of a judgment and costs arguments, meaning submissions needed to be completed within a maximum of two hours.

Mr Salter said: “Although the hearing of this application began promptly at 10.30 am, the parties did not complete their submissions until well after 1pm. There was therefore no time for judgment to be given or for consequential matters to be dealt with. I was therefore obliged to reserve judgment.

“At the moment, half-day appointments in the Friday applications list are readily available, but full-day appointments are now being fixed for dates in six months’ time. That practical reality results in applications such as this continuing to be given unrealistic estimates.

“The remedy, however, is for the parties to tailor the scope of their applications to the time available, and not (as in the present case) for them to try to cram more issues than can possibly be dealt with into an unrealistically short hearing time.”

The parties should have reduced their application “to such of its essential elements as could properly be dealt with” in two hours, he said.

Mr Salter concluded: “Any further inaccurate estimates given for the hearing of applications in this case are therefore likely to be visited with the sanctions indicated in the September 2020 notice.”

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