IRG: First dismissal without trial under new Woolf reforms

The Court of Appeal, with Lord Woolf presiding in Stevens v Gullis (CA 27 July 1999), has sent a strong message to all users of the new Woolf Reforms by noting that:

- judges' case-management powers set out in the Civil Procedure Rules (CPR) are extremely potent, and - it expects these powers to be used to eliminate delay, excessive cost, incompetent experts and missed trial dates of the previous regime.

Simon Chandler, senior lawyer in CMS Cameron McKenna's Insurance and Reinsurance Group commented: "This decision underlines how the Court of Appeal, in particular Lord Woolf, expects judges to approach active case management under the CPR robustly but fairly. It gives clear and early guidance that as long as powers are exercised in accordance with the overriding objective of the Woolf Reforms then the Court of Appeal will be reluctant to interfere with such decisions."

The case concerned a builder claiming for unpaid fees from his former employer and a counterclaim by the employer against the builder and the supervising architect for damages alleging defective and incomplete work, delay and loss of profits from his business.

The employer appointed an expert with minimal input from his solicitors, adopting the old-style adversarial approach. In addition, court orders requiring meetings of experts in order to narrow issues to a manageable number were ignored by the employer's expert. In December 1998, an 8-day trial was listed for June 1999.

The architect's solicitors successfully applied before Judge Moseley on 4th May 1999, a month before the trial date, to prevent the employe's expert from giving evidence in 3rd party proceedings. This was followed by an immediate oral application for dismissal of the action on the grounds that, in his claim for professional negligence, the employer now had no expert witness and his case was doomed to failure. The Judge dismissed the third party proceedings with costs of the action to be paid by the employer. The costs of the architect's attendance at an 8-day trial were thus avoided by the Judge's decision reached after a 3-hr preliminary hearing.

The employer appealed on the basis that the Judge had exceeded his powers and improperly exercised his discretion.

The Court of Appeal rejected the grounds for the defendant's appeal and the judgement contained particularly forthright passages on:

- the overriding duty under the CPR of all experts to the Court;

- the Court's power to control the evidence brought before it; and

- the importance of all parties and experts co-operating to ensure that cases are brought to a state of readiness so that the Court is enabled to try them justly and efficiently within the allocated court time.

Simon Chandler added: "The Court of Appeal also went one step further than Judge Moseley at first instance, by debarring the defaulting expert from giving any evidence at all in the continuing proceedings, even as a witness of fact, despite the parties' unwillingness to consent to an order allowing him to do so. As the first such upholding of a dismissal without trial, this decision shows how the CPR can radically reduce cost and delay in an appropriate case".

For more information please contact Simon Chandler.