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How should adjudicators deal with the unavailability of witnesses and representatives?

Bates and others v Post Office Ltd is an interesting group litigation involving over 500 claimants. In it, Fraser J has given the parties a stern warning about why he is not going to fix hearings to take account of counsel’s availability. It got me thinking about how adjudicators should deal with the unavailability of representatives and, indeed, witnesses.

Bates and other v Post Office Ltd

This group litigation involves over 500 claimants who ran post offices (known as sub-post masters). All of these individuals were required to use a sale and accounting system called Horizon, which was introduced in 1999/2000. Horizon was a computerised system and included both hardware and software, as well as communications equipment. It provided the Post Office with a computerised accounting function. In 2010, the system became internet based (and known as Horizon On-line).

The main allegation is that the Horizon system contained software coding errors, bugs and defects, which resulted in shortfalls in the claimants’ financial accounting with the Post Office. The Post Office said the claimants were responsible for the shortfalls. It seems that some paid the shortfalls but others didn’t, some were convicted of “false accounting, fraud, theft or other offences” and some ended up bankrupt. The group litigation is dealing with a multitude of issues, including malicious prosecution, claims for damages for financial loss, personal injury, deceit, duress, unconscionable dealing, harassment and unjust enrichment. There is also a criminal cases review commission (CCRC) review underway in respect of the convictions of a significant number of the claimants.

Complicated, to say the least, which brings me back to counsel’s availability and Fraser J’s warning.

The tail wagging the dog

The first set of directions in the group litigation were issued in April 2017, with the first CMC listed for October 2017. Apparently, that was:

“… met with a wholly unsatisfactory response from the clerks to leading counsel for the claimants, who notified the court that the hearing that had been ordered could not be accommodated on that date, but the court would be notified of a date that could be accommodated by all counsel jointly, once their clerks had agreed this between themselves.”

It was, Fraser J said, a “clear case of the tail wagging the dog”. He was suitably unimpressed as it seemed judicial availability was “such a secondary consideration to counsels’ diaries”. He advised the parties that hearings would not be fixed around the diaries of the many barristers involved in the case, particularly a hearing fixed so far in advance.

At the first CMC (which took place on the day directed), the parties agreed a hearing date for the substantive trial starting in November 2018. However, this time the defendant’s leading counsel wrote to the judge and said he couldn’t make it, as he would be part way through another trial in the Chancery Division. This letter was sent the day after the CMC and the claimants did not oppose the application to delay the trial. Another hearing was held at which Fraser J declined the application, and it was this hearing that the judgment relates to.

I think Fraser J acknowledges that his comments are to be viewed in the context of the group litigation, with so many parties involved, and bearing in mind the difficulties the court faces with the administration of such a large case. He referred to the overriding objective and the fact that the litigation has to be conducted in accordance with that principle. However, fixing hearings around the diaries of busy counsel was “fundamentally the wrong approach”. Not only would it allow creep into the litigation timetable, but it could raise issues of fairness. As all parties have to be treated fairly, each time one party delayed due to a lack of availability, it would only be fair to allow the other party a similar delay the next time it asked. He likened fixings hearings in this way to:

“… doing an intricate puzzle, with none of the fun associated with that activity.”

As delay was to be avoided, he said that he would be fixing “reasonable durations for certain steps to be taken” and that he would consider requests for “modest extensions” on their individual merits.

Food for thought

So what should an adjudicator do if faced with a request to move a submission date, meeting and so on due to the unavailability of a party’s representative or witness?

Well I’ve certainly had a number of these requests over the years, from requests to simply alter a submission deadline by a matter of hours to a request to extend a submission deadline by two months due to an illness.

First and foremost, we must remember that adjudication is a 28-day process and the adjudicator is unable to unilaterally extend that timetable. Therefore, if a request for an extension of time would leave the adjudicator with insufficient time to reach his decision, he may have no option but to refuse it. That is exactly what happened recently in Jacobs UK Ltd v Skanska Construction UK Ltd, which I wrote about in October. In that case, the adjudication was discontinued and the adjudicator resigned as a result of delays caused by  counsel’s unavailability.

It may well be possible to accommodate small extensions to dates without affecting the overall adjudication timetable or prejudicing the other party. Where this is the case I will normally allow extensions. It may also be possible to split submission dates to accommodate the unavailability of witnesses, for example allowing a witness statement to be submitted after the main submission.

However, there may be times where the overall timetable will be affected by a request for an extension due to unavailability, as might the dates for the other party to prepare its submissions, attend a meeting and so on. I will obviously assess each request on a case by case basis considering the possible knock-on delays, the reason for the delay and the potential prejudice that might be caused to the other party. In the case of witnesses, I will also take into account the relevance of the witness involved to my decision. Where I consider that a delay is justified, I will attempt to get the parties to agree to a revised timetable, either by inviting them to liaise with each other, or proposing such a timetable myself. If neither of these initiatives work, then I will sometimes hold a telephone conference with the parties’ representatives as a last resort. I normally find that, no matter how entrenched parties seem to be, agreements can be reached when the parties are asked to justify their positions in a telephone conference. I’m not sure that extensions I agree to are “only granted grudgingly”.

I acknowledge that my approach may sometimes result in creep to the adjudication timetable, but I am in no doubt that on occasion this is justified. For example, back in 2010 Matt wrote about creep and explained that he agreed to an extension of an adjudication timetable due to the unavailability of certain key individuals due to the volcanic ash cloud. There is no doubt in my mind that in such circumstances that was entirely the right course of action, rather than pressing on with the original timetable.

It is also worth bearing in mind that adjudicators have to comply with the rules of natural justice. Just as Fraser J acknowledged that he had to treat the parties fairly when it came to assessing any requests to accommodate counsels’ availability, we also have to treat the parties fairly, and give each the same opportunity to present their case. As Matt also noted, if we don’t treat the parties fairly, we just give them potential grounds to challenge our decision on enforcement.

MCMS Ltd Jonathan Cope

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