A High Court judge has dismissed a last-minute attempt to adjourn a trial despite what he acknowledged had been a ‘lazy approach’ to compiling the trial bundle.
Mr Justice Constable said the consequences of cancelling a trial due for this week in Innovate Pharmaceuticals Ltd v University of Portsmouth Higher Education Corporation were too severe and it was not justifiable to postpone until spring 2024 at the earliest.
The court heard there had been several complaints about the timing and content of the trial bundle, and what the judge described as a ‘regrettable lack of constructive co-operation on both sides’.
The defendant, represented by Eversheds, had wanted the trial adjourned and the application was heard last week.
The claimant, represented by JMW, had been given until 28 August to submit the final trial bundle, but elements of it were not delivered until 15 September, the judgment states. The estimated trial bundle contained up to 11,500 pages between both sides.
The judge said the claimant had been ‘regrettably late’ in seeking a revised disclosure list from the defendant after an issue had cropped up with the date format for documents.
‘It does appear that the defendant’s criticism that JMW seemed only to be putting its mind to the creation of the trial bundle index at the last minute is justified,’ said the judge. ‘This may be the explanation for the decision simply to include all disclosure in the trial bundle index.’
The judge added: ‘It is the experience of the court that this is, all too often, the default position particularly in circumstances where, as is often the case nowadays, the trial bundle is electronic. The fact that the bundle is not always printed is, however, no reason whatsoever to take what is a lazy approach to the compilation of a trial bundle by simply including all documents.’
The judge said the trial bundle should contain only those documents that are likely to be referred to at the trial and it was a ‘source of amazement’ how often parties were unable to co-operate constructively over pre-trial preparation.
In a case lasting three weeks, he suggested, it was ‘improbable’ that more than a few hundred documents would in fact be referred to in court.
The judge said the bundle was undoubtedly later than it should have been, caused primarily by JMW incorporating all documents and starting the process late (albeit with issues over the formatting caused by the defendant). But these issues did not put a fair trial in jeopardy and did not impede the ability to prepare a defence, with the majority of documents having been ‘in play’ since disclosure started in February.
The judge said adjournment would cause significant delay for a minimum of four months and incur extra cost and disruption. The trial was allowed to go ahead.
