29th January 2014

Troubled waters for commercial disputes

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29th January 2014

Troubled waters for commercial disputes


Are you responsible for dealing with commercial disputes?

Then, you may want to read this…

Over recent months the courts have delivered a number of decisions which confirm what lawyers anticipated – judges are now more likely to take a robust position, and one with adverse consequences to one or both parties, for non-compliance with directions.

In the past judges often allowed time limits to be missed without significant consequences. However, the prevailing wind is very much to make sure that where directions are given or a court order made that the parties comply or suffer the consequences. A recent case demonstrates the point. The claimant did not serve witness statements in time. The judge, when reviewing the papers, made an order limiting the claimant’s evidence at trial to certain issues and debarred him from adducing factual evidence. It had been open to the defendant’s lawyers to apply to the court for an order stopping the claimant from relying on his witnesses because he had failed to serve his witness statements in time. The claimant presumably felt safe as the defendant had not made an application. That was, until the judge got hold of the case. In making the order the judge described the defendant’s failure to make an application dealing with the claimant’s failure as “unduly timid”.

It is clear from this case and others that you can expect court orders to be strictly applied unless there is very good reason why there should be a variation. If you are dealing with a commercial dispute which is subject to the court process or heading towards court then exercise caution with all dates or directions. No longer can you expect the amount of leeway that was once the case, and judges may well be on your case in more ways than one.