Late Application to Adjourn Trial Fails
Fitzroy Robinson Limited v Mentmore Towers Limited and others  EWHC 3070
The Defendant applied to adjourn the quantum trial three weeks before the trial date and the day before the pre-trial review because the Defendant’s experts had not met, exchanged reports or produced a joint statement as required by the directions.
CPR 3.1(2)(b) gives the Court the power to adjourn a hearing. When exercising that power, the Court must consider the overriding objective of the CPR to deal with cases justly. The Defendant argued that it would be difficult or impossible to hold a fair trial if there was no adjournment, and claimed that the non-compliance had been caused by the parties’ attempts to settle the claim.
In his judgment, Coulson J identified the following factors which the Court should take into account when considering an application to adjourn a trial at the eleventh hour:
- The parties' conduct and the reason for the delays;
- The extent to which the consequences of the delays can be overcome before the trial;
- The extent to which a fair trial may have been jeopardised by the delays;
- Specific matters affecting the trial, such as illness of a critical witness;
- The consequences of an adjournment for the Claimant, the Defendant and the Court.
Coulson J decided that settlement negotiations did not constitute a good enough reason to justify the Defendant’s lack of compliance with the Court timetable. He said that such negotiations were part and parcel of such cases. Coulson J believed the application to adjourn was in fact a negotiating tactic on the part of the Defendant. They had also offered no explanation or evidence to support their assertion that such delays would make a trial impossible. There were also financial consequences for the Claimant if the trial were to be adjourned, as well as the detrimental effect on the Court and its users in an attempt to squeeze it into the judge’s timetable. Coulson J decided that in the circumstances a fair trial would not be jeopardised, and the application was refused accordingly.
This case reinforces the Court’s reluctance to adjourn trial dates. If an application to adjourn a trial date is to succeed, it must be supported by strong evidence that a fair trial would not be possible without an adjournment. The decision also reinforces the fact that negotiations should be a routine consideration throughout a case as opposed to a last minute attempt to avoid or delay trial.
Breaking the Chain of Causation
Robert Eric Spencer v Wincanton Holdings Ltd  EWCA Civ 1404
The appellant employer (W) was vicariously liable for an accident that resulted in the above knee leg amputation of the respondent former employee (S). Liability was not in issue, but whilst the personal injury action against W was still ongoing, S suffered a further accident which aggravated his original injury. S had attempted to fill up his car at a petrol station without summoning help or steadying himself using sticks or his prosthesis. He caught his foot against a raised manhole cover and fell and ruptured his left quadriceps tendon, causing lasting damage and confining him to a wheelchair.
At trial Judge Bullimore held that the second injury formed part of the damage for which W were liable, as the amputation had made the Claimant prone to fall. Damages were reduced by one-third to reflect S's contributory negligence.
W was given permission to appeal the decision on the extent of their liability to S. They argued that following McKew v Holland & Hannen & Cubitts (Scotland) Ltd (1969) 3 All ER, they were not liable for damages resulting from the second accident because those damages were the result of "unreasonable conduct" on the part of S.
On appeal, Lord Justice Sedley considered that the purpose of the word ‘unreasonable’ in this context was to determine the point at which the law regards a consequence as too remote. He thought it too problematical to explain remoteness in terms of foreseeability, and instead decided the relevant principle was one of fairness and that the question of remoteness involved a value judgment.
The Court of Appeal agreed with Judge Bullimore’s conclusion that S's conduct "fell far below what could be described as McKew unreasonable”, and considered the finding of contributory negligence sufficiently acknowledged S’s own contribution. It was held that the second accident had been an ”unexpected but real consequence of the first accident” and the appeal was dismissed accordingly.
This case demonstrates the high threshold in place in regards to unreasonable conduct sufficient to break the chain of causation. There is inevitably a degree of tension for the Defendant in this case; on one hand the Court found that the Claimant did not reach the standard of unreasonable conduct required to break the chain of causation, and on the other they held him to be contributorily negligent within the terms of the Law Reform (Contributory Negligence) Act 1945, meaning they found him to be at fault and that fault had a causative effect on his injury. Short of a very reckless and deliberate act on the part of the Claimant, the chain of causation will not be broken. Defendants should be on guard in prolonged cases that carry a risk of further accidents occurring which in turn increases the risk of further damages being awarded. Swift settlements are therefore to be encouraged in appropriate cases where liability is not disputed.
Accepting Offers Out of Time
Sampla v Rushmoor Borough Council  EWHC 2616
The transcript for this judgment has only recently been made publicly available, and is important to consider as it confirms that even if a Part 36 offeree rejects an offer, makes a counter offer or simply fails to respond to the original offer within its stated time limits, a Part 36 Offer can still be accepted at any time unless it is withdrawn. The only exception is if there has been a significant change in both parties shared perception of the outcome of the case and the trial was almost at its conclusion meaning any settlement would only result in modest savings.
This case concerned a construction dispute against two Defendants, and although the claim had been settled the Defendants could not agree on their respective contributions. The First Defendant (D1) had sought permission from the Court to accept a Part 36 Offer made by the Second Defendant (D2) which it had previously rejected, as well as indicating that it was not prepared to make any contribution to the settlement of the claim.
During presentation of the final submissions at trial, the First Defendant asked the Second Defendant if it could accept D2’s offer ‘out of time’. D2 refused. D1 then made a counter offer which was rejected by D2, leading to D1’s application to the Court to accept the original Part 36 Offer out of time.
The Court held that it was possible for D1 to accept the Part 36 Offer at that stage notwithstanding its earlier refusal, and did not accept that estoppel applied in this case. It noted CPR 36’s focus on acceptance and silence as to rejected offers, and held that there was no implied term that the offer could not be accepted once the trial has started.
However it was still necessary for the Court to consider all the circumstances, and in this case there was a material change in circumstances during the trial which made it unjust to grant permission, and the Court exercised its discretion and rejected D1’s application. The application had also been made at the last minute during closing submissions, making any chance of savings severely limited.
This case highlights the Court’s flexible and supportive approach to CPR rules concerning settlement. However, this should not encourage complacency and parties should continue to exercise timely consideration in regards to Part 36 Offers. As the above case demonstrates, just because the Court can give permission doesn’t mean it will. Each case will be considered in light of the overriding objective and what is just and fair to both parties.