The High Court has rejected a non-compliant claimant’s plea to set aside a trial date but stopped short of effectively ending the claim altogether.
Care home provider Spectrum admitted a serious breach of court orders after failing to be ready for a trial just a month before it was due to start.
The company, which is in dispute with Cornwall Council over payments for care provision, failed to serve witness statements by an agreed deadline of 12 December, and appeared at a hearing on 16 January to ask the court to vacate next month’s trial date.
High Court judge Mr Justice Green said the claimant was not ready to go to trial right away and, in any case, the case would likely collapse if he refused the claimant the right to adduce oral evidence.
But Green rejected the claimant’s suggestion that vacation of the trial date was a ‘moderate step’ and ruled that proceedings should go ahead as planned.
However, he said he was conscious of the guidance set out in the Denton judgment, which said that justice should be allowed to occur, and he opted to allow Spectrum to serve witness statements in advance of the trial.
‘The proper and proportionate balance to be struck in this case is to require the claimant to proceed to trial but not artificially to tie its hands by preventing it from calling witness evidence,’ said Green.
‘If I force the claimant to proceed, at double-quick time, to trial but without the ability to adduce witness evidence this will dramatically curtail the ability of the claimant to advance a serious case.’
The court heard that the £700,000 claim had gone to trial after an unsuccessful mediation in June 2014.
The timetable was subsequently varied by consent, with a timetable laid down for preparing for trial on 25 November.
Spectrum had first been represented by Follett Stock before that firm was subject to an SRA intervention. Their replacement, Kitsons, terminated their retainer in December 2014 after the defendant sought to place reliance on the arrest of the claimant’s chief executive as evidence of financial impropriety.
Edward Pepparall QC, appearing for the claimant at this month’s hearing, admitted the case was in a ‘parlous’ state and that Spectrum did not even have access to all relevant papers.
But Green rejected the idea that the breach of court order was anything but very serious. He described Spectrum’s reasons for the breach as ‘opaque’ and said there was no explanation for how or why events had impacted on the failure to comply with court orders.
He added that he did not accept that the claimant could ‘hide’ behind legal privilege as a reason for not providing an explanation.
‘I do not accept that the mere fact that previous representation has ceased to act can be an adequate explanation in circumstances where the reasons for that occurrence require elucidation,’ he said.
The claimant had attempted the argue that vacating the trial would only set it back by four months, but Green said postponing a hearing for a serious, ill-explained breach ‘runs counter to the very change in ethos’ that the court in Denton and Mitchell were trying to bring.
‘The court’s timetable is congested and all adjournments have consequences,’ he added.
In addition to refusing to change the trial date, Green also ordered that Spectrum pay the defendant’s costs of applying for a vacation.