11th Hour Applications – Another Warning

There has been some debate amongst lawyers as to whether the seriousness and significance of a breach of a Court order should be based entirely upon the impact the breach has on proceedings. Mr Justice Mann, in his judgment handed down in the matter of Gerald Byrne v. Robert Mullan [2017] EWHC 1387 (Ch) provides confirmation that the Court should not be concerned with the impact on proceedings alone.

By way of background, the Claimant had sought permission to adduce further witness evidence in an application dated 4 weeks after the deadline for exchange of statements and only 3 weeks before the trial. It was not possible to hear the application until the day before the trial. His Honour Judge Madge dismissed the Claimant’s application, noting with reference to the “Denton Test” that the breach had been serious, there was no good reason for it, and it was not appropriate in all the circumstances of the case to grant relief, for reasons including that it would cause the trial to exceed its allotted 3 days of court time and so would have to be vacated.

The Claimant appealed, arguing that had the additional witness evidence been filed on time then the trial window would still have been too short and it would still have been necessary to vacate the 3 day trial window and so:

i) HHJ Madge was wrong to conclude the breach was serious when the breach itself did not occasion the delay; and

ii) When applying the 3rd stage of the “Denton Test”, HHJ Madge was wrong to place weight on the loss of the trial date.

Mann J described the Claimant’s arguments as “interesting” but was not persuaded by them. He held that HHJ Madge was perfectly entitled to hold that the application had been made “late and seriously late” and noted that to make an application which could only be heard on the day before the trial was, on any footing, “very late and very serious”.

In relation to the Claimant’s arguments regarding the 3rd stage of the “Denton Test”, Mann J commented that “it is one thing to decide to vacate a trial date 2 months in advance; it is another to vacate it on the date before it starts”, having regard to the additional anxiety caused to parties and wasted brief fees that would be a likely consequence of a last minute adjournment.

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