Preparing for Trial

Litigation solicitors will benefit from reading comments of Deputy High Court Judge Seagroatt in his reasons for decision in Wide Power Corporation Limited v The Incorporated Owners of Manhattan Court (HCA 1485/2013) delivered on 29 July 2016.

The case involved a dispute between an owner of a flat in Manhattan Court and the Incorporated Owners as to responsibility for a leaking main room which had caused damage to the plaintiff’s flat which was immediately beneath the roof. The substance of the dispute, legally and factually, is not important, however.

On the first day of trial, the Deputy Judge adjourned the matter until 11 AM the following day for the parties’ solicitors to complete various pre-trial steps which, the Deputy Judge said, should have been carried out as a matter of “common sense and professional obligation”, irrespective of whether such steps were expressly directed by the court in the case management hearings.

The Deputy Judge criticised both parties’ legal representatives for, in his view, their failure to properly prepare the case for trial. The substance of his criticisms are best explained by repeating his succinct comments:

This case was called on for trial before me on Monday, 18 July 2016 with an estimate of five days duration. The date of trial had been fixed as long ago as November 2015.

It was clear from my perusal of the papers that there was no agreed chronology. Both counsel had submitted their own version of a chronology. That is unhelpful.

Secondly, there was no agreed statement of facts. That is a singular omission. Its purpose is to reduce unnecessary conflict, evidence and consideration for the judge. It clears the decks in a contest.

Thirdly, there is no statement of agreed issues. The purpose of this is to enable all minds to concentrate on what is relevant and to be argued.

All these matters are part and partial of essential preparation. They also reduce unnecessary costs. They concentrate the mind of counsel. They enable a judge to approach the trial with a concentration on the material matters.

Importantly, Deputy Judge Seagroatt added:

It does not require a court, in its interlocutory perambulations as parties gnaw over a bare bone, to make specific directions to these ends. They should be done as a matter of common sense and professional obligation.

The learned Deputy Judge also strongly disapproved of solicitors sending additional documents to the court to be inserted in the agreed Trial Bundle(s) (as had occurred in this particular case). On this point, he said:

A fourth matter emerged in a different context and has been illustrated in so many cases. Solicitors for either or both parties, having lodged bundles for trial, persist in sending additional statements, affidavits, and documents to be inserted into the bundles. Judges’ clerks are not to be misused to compensate for the inadequacies of solicitors. Nor should a judge be expected to do that also.

I suspect that where solicitors indulge in such lazy practices and rely on court staff to do this work for them, they nonetheless include costings in their bills as if they had done the work themselves. In future as far as I am concerned the papers will remain as left by them for the solicitors or their clerks to do the work themselves.

The general lesson from the learned Deputy Judge’s observations is that solicitors for all parties in an action should cooperate to complete pre-trial steps, such as those referred to above, as are reasonably necessary or helpful for the court to hear the matter on the most efficient basis possible. Thus, more may be required than is covered by directions made on the Case Management Summons. Similarly, certain steps should be taken in accordance with the Rules or Practice Directions, rather than waiting for an order to be made on the Case Management Summons (or otherwise) (eg, discovery).



Litigation Partner, Fred Kan & Co.