These updates are aimed at keeping you up to speed and informed of the latest developments in caselaw relevant to your practice.
Richardson v Glencore
Judge cautions against late requests to dispense with an oral hearing for a CMC in the Commercial Court
http://www.bailii.org/ew/cases/EWHC/Ch/2015/2.html
Case Management Conferences are mandatory in the Commercial Court and TCC. The Commercial Court Guide advises that the general rule is that there must be an oral CMC at court. However, section D8.3 of the Commercial Court Guide provides that "there are cases which are out of the ordinary where it may be possible to dispense with an oral hearing if the issues are straightforward and the costs of an oral hearing cannot be justified".
In this case, the day before a scheduled CMC, the parties sent a joint letter to the court listing officer advising that the parties had reached agreement on the list of issues, case memorandum and a draft order as to the pre-trial timetable. They therefore asked whether attendance at the CMC was required.
Walker J said that this letter "demonstrated a failure on the part of all concerned to appreciate the role and importance" of the CMC. The parties had also failed to comply with key aspects for their request as set out in section D8.3. They had failed to provide a confirmation from each advocate that the parties had considered all relevant issues and, crucially, they had failed to lodge all the appropriate documents "no later than 12 noon on the Tuesday of the week in which the CMC is fixed for the Friday". The judge said that an out of time request to vacate a scheduled hearing "is misguided and may result in sanctions", unless there is a good reason for the late request. Furthermore, a failure to lodge on time will "ordinarily" result in the CMC going forward to an oral hearing.
The sanction which the judge had had in mind in this case was an order that each side should bear its own costs of the CMC (the court normally orders that the winner of the eventual trial will pay for the costs of the CMC). However, as an "act of mercy", he chose not to make such an order here. Although he stressed that nothing in the judgment was intended to dissuade proper requests for a paper CMC, he emphasised that those "who make out of time requests to vacate a case management conference in the Commercial Court should not assume that they can do so with impunity". He also urged parties to "think again" if they think that costs might be saved by an out of time request for a paper CMC: "The best working assumption is that the benefits of an oral case management conference will more than justify the costs involved".
Hilton v D IV LLP
Court considers a Norwich Pharmacal order application against a firm of solicitors
http://www.bailii.org/ew/cases/EWHC/Ch/2015/2.html
A Norwich Pharmacal Order ("NPO") is a common law right which requires a respondent who is "mixed-up" in wrong doing (whether innocently or not), so as to facilitate that wrongdoing, to provide "full information" on the alleged wrongful act. It was held in R(Omar) v Foreign Secretary (see Weekly Update 24/12) that it must be shown that the respondent's involvement facilitated the wrongdoing ie there must be some participation. However, this test was challenged in Various Claimants v News Group Newspapers (see Weekly Update 27/13), where Mann J held that all that is required is that a respondent not be a "mere witness" (there, the police had a duty to acquire information and so could not be described as "mere witnesses").
In this case, the applicant sought a NPO against solicitors who had come into possession of certain documents when instructed to act on behalf of the defendants. There was no allegation of wrongdoing against the solicitors themselves. The judge said that it was necessary to establish that the solicitors were mixed up in the wrongdoing: "that it [the respondent] has innocently facilitated the commission of the alleged wrongdoing". On the facts, the solicitors had had no connection at all with the wrongdoing – they had merely had documents in their possession which might relate to it. It was also held that the fact that an application under CPR r31.16 (for pre-action disclosure) cannot succeed does not lead to a conclusion that an application for a NPO must succeed. Accordingly, the application for the NPO failed. The judge also pointed out that the information being sought could be obtained by an application for pre-action disclosure against the defendants.
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