M A Lloyd & Sons Ltd (trading as KPM Marine) v PPC International Ltd (trading as Professional Powercraft)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Turner |
| Judgment Date | 20 January 2014 |
| Neutral Citation | [2014] EWHC 41 (QB) |
| Docket Number | Case Nos: HQ11X02186 |
| Court | Queen's Bench Division |
| Date | 20 January 2014 |
[2014] EWHC 41 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Turner
Case Nos: HQ11X02186
HQ12X02165
Mr Michael Shrimpton (instructed by Charles Henry) for the Claimants
Mr Ellis Leigh of Drukker Solicitors for the Defendant
Hearing dates: 16 th and 17 th January 2014
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION
This case provides yet another example of a litigant treating an order of the court as if compliance were an optional indulgence.
BACKGROUND
This is a claim in respect of alleged breaches of a confidentiality agreement and passing off.
Part of the claimant's case is that the defendant company, which was incorporated under the laws of Brunei, is legally extinct and, in any event, not entitled to litigate in the jurisdiction of England and Wales.
PROCEDURAL HISTORY
The full procedural history of this litigation is labyrinthine. No purpose would be served by rehearsing the details.
On 11 October 2013, the matter came before Walker J. at a hearing which the claimant did not attend.
Walker J. ordered:
"5. For the avoidance of doubt, the hearing of the claimant's application notice…is adjourned to the hearing before the judge on 30 January 2014 and in that regard:
(1) The claimant shall file and serve a witness statement or statements dealing with the matters of fact and a skeleton argument on matters of law addressing the following issues no later than 4pm on 25 October 2013: (i) the existence [of] the defendant company in claims HQ11X02186 and HQ12X02165, and (ii) the entitlement of the defendant to litigate in this jurisdiction;
(2) In response, the defendant shall file and serve a witness statement or statements dealing with matters of fact and a skeleton argument on matters of law by 4pm on 29 November 2013…
6. Both sides must take all reasonable steps to ensure that the hearing on 30 January 2014 will be able to deal effectively with all case management matters that may arise…"
In the event, the claimant failed to file or serve any witness statements or skeleton arguments in accordance with these orders. At first, counsel for the claimant told me that his client had indeed served a compliant witness statement but, owing to the lateness of his instructions and the fact that his instructing solicitors had not brought the file to court, he had not seen it. When, following a short adjournment, the statement to which he was referring was eventually retrieved it was found to be a very curious document which counsel promptly and realistically conceded was not at all what the court had ordered should be filed and served.
The document in question was a witness statement from Mr Key, a director of the claimant company. Paragraph 2 of this statement provided:
"I have been advised that we are unable to make progress this matter (sic.) and fully comply with the obligations of clause 1 of the 7 October Order sealed on 10 October 2013, of Master Kay QC, because, information required from the Registry for International Business companies in Brunei Darussalam in regard to PPC International Ltd will not be disclosed by the Registrar before he receives…"
There then followed a list of documents which the claimant asserts the defendant must disclose before it can establish its case on the issue to which the court's order related.
There is an issue as to whether the claimant has already seen some of these documents but it is one which I do not need to resolve.
Overlooking for a moment the fact that this witness statement refers to a different order made by a different court than that in respect of which this application is made, it cannot, in any event, be said to deal with the matters of fact which Walker J. had ordered that it should. The instructions upon which counsel had originally based his assertion that it complied with the order of Walker J. had, putting it kindly, failed to strike an appropriate balance between realism and optimism.
The following points are abundantly clear:
(i) The claimant should have informed the court of its alleged inability to provide the evidence before the order to serve and file a witness statement containing such was ever made;
(ii) If the fact that the claimant would be unable to comply with the order only came to light after it had been made then the claimant should have made an application to extend the time for compliance as soon as practicable and, in any event, before the deadline for compliance had passed;
(iii) The claimant should have made a formal and prompt application for specific disclosure of the categories of document sought and not simply incorporated a wish list of such documents in the body of a witness statement in the forlorn hope that the court would thereafter make an order of its own motion.
Notwithstanding the claimant's default, on 9 December 2013 the defendant applied (i) for an extension of time to comply with paragraph 5(2) of the order of Walker J. for the defendant to serve a witness statement in relation to the matters defined in the order and (ii) for permission for the parties to adduce expert evidence on the law of Brunei. It was this application which came before me on 16 January 2014.
At 11.26am on that day the claimant's solicitors emailed the defendant's solicitors with a proposed consent order "with a revised timetable". They did not attend the hearing despite the fact that their proposed order was not agreed. They did, however, attend with counsel on the following morning thereby forestalling the handing down of my judgment which had been reserved on the preceding day. Counsel explained to me that the claimant had assumed that the court would make some order that did not stray too adventurously from the path upon which the parties were in broad consensus and that it would have cost too much for the claimant to come to court to argue over the difference. This assumption was unwarranted.
Of course, the court has power under CPR 23.11 to re-list an application where it has previously proceeded in the absence of one of the parties but this is a power which is likely to be exercised sparingly in the light of the specific regard which the court must now have for the need, where reasonably practicable, to allot to any given case an appropriate share of the court's resources. This case provides a working example of the consequences of a party choosing not to attend a hearing and hoping for the best. As a result of the claimant's decision not to attend on 16 January 2014, the judgment which was to be handed down on the following day had to be re-drafted and handed down on 19 January 2014 to take into account the fresh submissions raised by counsel for the claimant. I had to hear argument over two days rather than one. Thus an amount of court time which is disproportionate to that which would reasonably have been required has already been taken up. A party cannot simply assume that, where outstanding issues have not been conclusively resolved in advance of a hearing, it can absent itself confident in the assumption that if the court were to make an...
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