The applicant second defendant (X) applied to adjourn a trial date in a claim brought by the claimant (H) where the first defendant was (F).
The trial date in the claim was set for February 2011 after two previous trial dates had been vacated. Once the current trial date had been set, the witness statements were due to be served towards the end of September 2010 pursuant to directions. X's solicitors wrote to H's solicitors shortly before service of the witness statements was due, informing them that they were not able to serve and needed 7 more days. H's solicitors agreed to that short extension. Shortly before the later date for service X's solicitors wrote again to H's solicitors stating that they were not prepared to serve any witness statements until after the date fixed for trial, and asking for consent to vacation of that date. One reason given for the delay was that X wished to listen to 50,000 voice recordings to see if any were relevant. Subsequently, X's solicitors refused to disclose any such recordings obtained, to disclose a list of documents, and to allow H's solicitors to come and listen to the recordings. X's solicitors were also unwilling to listen to the recordings, so X would do it. At first, F took a neutral position on the application for adjournment, but then supported it on hearing X's submissions. At the hearing, H produced to the court a timetable showing how the existing trial date could be met.
X submitted that (1) in September X discovered that recordings of phone calls might exist, which X had previously thought destroyed. The transcription of the recordings would not be finished until January 2011 and then X's experts would need three-to-four weeks to consider them. Thus, the trial date needed to be vacated; (2) H's timetable was wholly unrealistic.
(1) It was necessary to consider any other option that would avoid another postponement, and whatever steps could and should be taken should be considered. It was wrong to allow a further adjournment unless the judge was satisfied that X's failure to comply with orders should be allowed to lead to postponement, which was a last resort. X had not satisfactorily explained their failures to comply with the orders as to disclosure and witness statements. X had not dealt with the recordings in a satisfactory way. The trial date was not to be adjourned. (2) The judge was not satisfied that H's timetable was unrealistic.
The trial date in an action was not vacated for the third time on an application for adjournment where it was possible to maintain the trial date.