High Court laments “wholly unacceptable” last-minute adjournment

Pelling: Practice note made position clear

A Commercial Court judge has blamed a claimant “in large part” for the “wholly unacceptable” last-minute adjournment of their case after he had begun pre-reading for it.

Three days of court time were lost as a result and His Honour Judge Pelling KC ordered the claimant to pay most of the costs thrown away.

Losing three full days of Commercial Court time was “wholly unacceptable”, he said in a newly published ruling from last month.

“It is wholly unacceptable for the reasons identified in the practice note issued by Mrs Justice Cockerill when she was judge in charge of the Commercial Court and co-signed by me as judge in charge of the London Circuit Commercial Court now some two years ago.

“It is unacceptable too because under-estimates of this sort are likely to lead to attempts to cram within an inadequate time limit a vast amount of submission delivered in a manner which will border on unfairness and possibly even result in unfairness.”

Judge Pelling was set to hear an application to make absolute a charging order relating to a Chinese arbitration ruling, with the “main substantive issue” being whether the second, third and fourth respondents were the ultimate beneficial owners of property subject to the charging orders.

The application was listed for three days with half a day’s judicial reading time, but it was only after he questioned the adequacy of the time estimate, shortly after starting pre-reading, that the parties agreed that the hearing would require up to five days, with one and a half days’ reading time.

HHJ Pelling said: “Three days was described euphemistically as ‘a little tight’ when the master gave directions but in my judgment was and ought to have been seen to be inadequate.”

It “rapidly became more and more inadequate” as a seventh respondent was added, it became apparent that the evidence of at least some of the witnesses would have to be given in Mandarin, extending the length of cross-examination significantly, and that an application for relief from sanctions issued by the claimant would take at least half a day to resolve.

On the costs of and occasioned by the adjournment, all the respondents argued that the claimant should pay, while the claimant submitted that they should be reserved.

He rejected the claimant’s position, saying these costs had nothing to do with the substantive outcome of the application.

“The need for an adjournment in large part arises from a failure on the part of the claimant (i) to issue the relevant notices challenging authenticity [of key agreements] in time, (ii) to issue an application for relief from sanctions until two weeks before this hearing was due to commence, and (iii) the claimant requiring the application to be listed at the start of the trial.”

However, some responsibility “must rest on the shoulders” of the second, third and fourth respondents, who failed to engage directly with the court over the inadequate time estimate.

Judge Pelling limited the costs recovered by the second and third respondents from the claimant to 75% and the fourth respondent to 50%, to take into account the costs the claimant could have recovered from her own relief from sanctions application.

The fifth, sixth and seventh respondents, whose role in the proceedings was to make “purely legal submissions”, were entitled to recover full costs from the claimant.

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