Agreement by parties not enough in post-Mitchell litigation

The High Court has once again shown its determination to enforce strict deadlines in the wake of the Mitchell ruling, this time shrugging off a last-minute agreement by the parties and describing a defendant as 'unduly timid'.

Ruling on a commercial claim for breach of confidentiality and passing off, Mr Justice Turner said the case was "yet another example of a litigant treating an order of the court as if compliance were an optional indulgence".

Turner said the claimant argued that the defendant company, incorporated in Brunei, was "legally extinct" and not entitled to litigate in England and Wales.

However, he said the full history of the litigation was "labyrinthine" and "no purpose would be served by rehearsing the details".

Delivering judgment in Lloyd & Sons v PPC International [2014] EWHC 41 (QB), Turner J said the claimant failed to file or serve any witness statements or skeleton arguments following a High Court hearing in October, which it failed to attend.

"At first, counsel for the claimant told me that his client had indeed served a compliant witness statement but, owing to the lateness of his instructions and the fact that his instructing solicitors had not brought the file to court, he had not seen it," Turner J said.

"When, following a short adjournment, the statement to which he was referring was eventually retrieved it was found to be a very curious document which counsel promptly and realistically conceded was not at all what the court had ordered should be filed and served."

Turner J said the claimant should have told the court about its "alleged inability" to provide evidence, should have applied for a time extension "as soon as practicable" and should have made a prompt application for specific disclosure rather than incorporating a "wish list" into its witness statement.

Despite the claimant's default, Turner J said the application before him, for a time extension and permission to adduce expert evidence, was from the defendant.

On the day of the hearing, rather than attending court, he said the claimants emailed the defendants' solicitors with a proposed consent order. The following day, the claimants attended court with counsel.

"Counsel explained to me that the claimant had assumed that the court would make some order that did not stray too adventurously from the path upon which the parties were in broad consensus and that it would have cost too much for the claimant to come to court to argue over the difference. This assumption was unwarranted."

Turner J said the case provided a "working example" of the consequences of one party choosing not to attend a hearing and hoping for the best. He said that as a result of the claimant's decision not to attend on the first day, argument had to be heard over two days rather than one and the judgment redrafted.

"Absence in these circumstances may very well turn out to be a false economy."

Having quoted from Lord Dyson's judgement in Mitchell, Turner said the claimant's delay of three months in serving a witness statement was "serious" and there was no evidence before the court of any good reason for it.

"The fact that, at the eleventh hour, the claimant's solicitors have volunteered a proposed consent order extending the time for service of witness statements falls far short of salvaging their position."

Turner J added that courts needed to be "pro-active" to achieve the overriding objective of the Jackson reforms, and described the defendant's approach as "unduly timid", doubting whether they were in default of the order relating to witness statements "at all".

Mr Justice Turner ordered that the claimant should be debarred from raising any issue relating to the existence of the defendant company or its entitlement to litigate in this jurisdiction.

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