A and N Holding NSW Pty Limited v Andell Pty Limited

[2006] NSWSC 55

CITATION:	A & N Holding NSW Pty Limited v Andell Pty Limited & Ors [2006] NSWSC 55
HEARING DATE(S):	13 February 2006
JUDGMENT DATE :	13 February 2006
JUDGMENT OF:	Bergin J
DECISION:	Application dismissed
CATCHWORDS:	[SUMMARY DISMISSAL] - Application to dismiss proceedings for failure to prosecute with due despatch. [CASE MANAGEMENT] - Objectives - Dictates of justice - Barristers' and solicitors' obligations to assist the Court.
LEGISLATION CITED:	Uniform Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005
CASES CITED:	Casauria v De Kever (unreported, Supreme Court of Victoria, Hayne J, 21 November 1994) Idoport Pty Limited & Anor v National Australia Bank & Ors (2000) 49 NSWLR 51 Price v Price (trading as Poppyland Headware) [2003] 3 All ER 911 Biguzzi v Rank Leisure PLC [1999] 4 All ER 934
PARTIES:	A & N Holdings NSW Pty Limited ACN 100 013 143 (First Plaintiff) Hunter Valley Sweepers & Watercarters Pty Limited ACN 109 654 319 (Second Plaintiff) Andell Pty Limited ACN 003 255 749 (First Defendant) Hunter Hire & Engineering Supoplies Pty Limited ACN 096 429 926 (Second Defendant) Darren Andrew Fouracre (Third Defendant) Lousie Fouracre (Fourth Defendant) Welsh's Water & Waste Pty Limited ACN 111 553 078 (Fifth Defendant) Warren John Welsh (Sixth Defendant) Mark John Eveleigh (Seventh Defendant) Kylie Maree Penfold (Eighth Defendant) Upward Mining Services Pty Limited ACN 113 814 289 (Ninth Defendant)
FILE NUMBER(S):	SC 50192/2004
COUNSEL:	P T Taylor SC (1st-2nd Plaintiffs) R Meltz (1st - 3rd and 7th-9th Defendants) D Stanton (4th - 6th Defendants)
SOLICITORS:	Fraser Clancy Lawyers (1st-2nd Plaintiffs) Curtis Delaney Grey (1st-3rd and 7th-9th Defendants) Hallett & Associates (4th-6th Defendants)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BERGIN J

13 FEBRUARY 2006

50192/04 A & N HOLDINGS NSW PTY LIMITED & ANOR v ANDELL PTY LIMITED & ORS

JUDGMENT

1 This is an application by way of Motion brought by the fourth, fifth and sixth defendants being respectively: Louise Fouracre, Welsh's Water and Waste Pty Limited and Warren John Welsh, that the proceedings be dismissed on the ground that the plaintiff has not prosecuted the proceedings with due despatch. The application is made pursuant to Part 12 Rule 7 of the Uniform Civil Procedure Rules 2005 (the Rules).

2 The matter came before the Court for directions in the Commercial List on 10 February 2006, at which time Mr Weinberger, of counsel, appeared for the plaintiffs, A & N Holdings NSW Pty Limited and Hunter Valley Sweepers and Water Carters Pty Limited, and Mr Stanton, of counsel, appeared for the fourth, fifth and sixth defendants, mentioning the matter for the balance of the parties in the proceedings being the first, second, third, seventh, eighth and ninth defendants, being Andell Pty Limited, Hunter Hire and Engineering Supplies Pty Limited, Darren Andrew Fouracre, Mark John Eveleigh, Kylie Marie Penfold and Upward Mining Services Pty Limited.

3 On that occasion, Mr Weinberger indicated that his clients sought an extension of time within which to file the evidence that had been ordered to be filed at the last directions hearing on 25 November 2005. The orders made by Einstein J on that occasion provided for the service of lay evidence by 16 December 2005 and the expert evidence by 3 February 2006. Nothing had been served by 10 February 2006 thus causing the plaintiffs to make an application for the extension of time. Mr Stanton indicated that his clients wished to move to have the proceedings stayed, struck out or dismissed by reason of the failure of the plaintiffs to prosecute the matter with due despatch.

4 I fixed the matter urgently for hearing today at which time Mr Philip Taylor SC appeared for the plaintiffs, Mr D S Stanton appeared for the fourth, fifth and sixth defendants and Mr D Meltz, of counsel, appeared for the remaining defendants.

Procedural History

5 The history of the matter is truly unedifying. It is a case which spans the case management in the commercial list prior to the introduction of the Uniform Civil Procedure Act 2005 (the Act) and the Rules in August 2005. The first plaintiff commenced these proceedings on 22 December 2004 by the filing of a Summons. At that stage there were only eight defendants. The plaintiff was seeking injunctive relief restraining the defendants from pursuing certain conduct and a declaration that the plaintiff be relieved from further obligations pursuant to a lease.

6 The matter was listed for the first time for directions on 25 February 2005. On that occasion, amongst other things, the plaintiff was granted leave to file an Amended Summons within 21 days. That did not happen. The matter was next before the court on 18 March 2005 when the first direction was made in relation to the filing of evidence. On that occasion the plaintiff also sought to issue numerous subpoenas. The matter was relisted on 30 March 2005 in relation to those subpoenas. On that occasion an order was made for the provision of discovery. The plaintiff failed to provide discovery as ordered.

7 On 6 May 2005 the plaintiff sought extra time within which to comply with the discovery orders. Discovery should have been completed by 13 May but that did not happen until later. The plaintiff had been ordered to file evidence by 27 May. That did not happen. The affidavit of Mr Bashford, a principal of the plaintiff, was filed on 10 June 2005. On that date a costs order was made against the plaintiff and the matter was set down for hearing on 9 September 2005 for five days.

8 On 13 July 2005, the solicitors then acting for the plaintiff notified the defendants that they were ceasing to act. On 15 July 2005 the matter was before the court again for a pre-trial review at which time the legal representatives for the plaintiffs indicated that the hearing date was vulnerable because the plaintiff would be seeking to join a ninth defendant, Upward Mining Services. In those circumstances, the plaintiff was granted leave to file a Motion to further amend the Summons to join the ninth defendant and also, it appears, to join the second plaintiff. The plaintiff was ordered to file that Motion by 4 August 2005. That did not happen until 18 August 2005 when the Motion was filed together with the affidavit in support for the joinder of the ninth defendant and the second plaintiff.

9 That Motion was heard on 26 August when the plaintiff was granted leave to file an Amended Summons by no later than 2 September 2005. On that occasion the plaintiff complied and an Amended Summons was filed on 30 August 2005. The trial date was vacated with costs orders against the plaintiff. On 23 September 2005 a further directions hearing occurred and the plaintiff was ordered to answer some particulars by 4 October. That did not happen. Particulars were provided by 13 October 2005.

10 Between August and November 2005 the parties were discussing mediation, it having been agreed that a mediation would occur. There was then a request by the defendants for the plaintiffs to provide their position paper in support of the claim for damages. That was the subject of some debate between the solicitors and the mediation did not occur until 3 November 2005 in Maitland. It was unsuccessful. On 4 November 2005 a further directions hearing occurred and the plaintiff apparently flagged a need to further amend the Summons. That was not taken any further.

11 On 25 November 2005 at the directions hearing before Einstein J there was no appearance for the defendant. Counsel appeared for the plaintiffs and orders were made for the filing of evidence referred to earlier.

The proceedings

12 The case outlined in the Amended Summons makes allegations against the defendants, in particular against the second, third, seventh and eighth defendants, that they have breached Deeds or agreements between them and the plaintiff. It is apparent that in June 2004 the first defendant entered into a contract with the first plaintiff for the plaintiff to purchase the first defendant’s businesses known as Hunter Valley Sweepers, Liftin and Shiftin and Central West Sweepers. That agreement included a restraint of three years with a geographical restraint of 100 kilometres from an address in Singleton, New South Wales. It is alleged that the first defendant and/or the third defendant (the third defendant being the sole shareholder and director of the first defendant) breached that agreement whereby the first defendant and/or the third defendant engaged in or were directly interested in a business the nature of the business sold to the first plaintiff within the restraint area.

13 It is also alleged that the first defendant and third defendant engaged in conduct derogating from the first plaintiff's right to obtain the full benefit of the goodwill of the business. There is a claim that the third defendant entered into a deed of covenant with the first plaintiff whereby he agreed to a similar restraint. It is alleged that he breached that agreement by reason of the conduct to which I have just referred.

14 There is a further agreement pleaded dated 29 July 2004 between the seventh and eighth defendants and the first plaintiff in relation to the purchase of businesses known as MS & K Commercial Water Carting Business. It is alleged that there was a similar restraint within that agreement and that those defendants have breached that restraint. The final agreement relied upon in respect of the restraint is the agreement of 8 October 2004 between the second plaintiff and the seventh and eighth defendants in respect of a business known as H20 with a similar restraint. It is alleged that the seventh and eighth defendants have breached that restraint. Put shortly, it is claimed that the defendants have sold to the plaintiffs the various businesses for approximately $700,000, and the defendants have then gone into immediate competition in the geographical restraint area.

15 There is a claim against the fourth defendant who was employed by the first plaintiff as an office manager for some time prior to these agreements until December 2004. It is alleged that the fourth defendant owed the usual duties of loyalty to the plaintiffs and in breach of her contract of employment and duty of confidence and obligations to act with fidelity towards the plaintiffs, has conducted herself in a way that has provided material to the other defendants already named for the purposes of assisting them to compete with the plaintiffs within the geographically restrained area.

16 There are allegations of breach of confidence against all defendants in which it is alleged that they took possession of documents and utilised those documents and information within them, said to be confidential, to assist each other in businesses that are competitive with the plaintiffs. There are also allegations against the second to ninth defendants in respect of inducing breaches of contract between the respective defendants and the plaintiffs. Finally, there is a claim in respect of a lease contained in paragraphs 21-25 of the Amended Summons filed on 30 August 2005.

17 The affidavit of Mark Fraser, solicitor for the plaintiffs, annexes an e-mail dated 12 October 2004 from the sixth defendant to an accountant. That e-mail states:

Bill, I am wanting to start a company in the name of Welsh’s Water and Waste Services with two shares (1) Warren John Welsh and (1) Warren John Welsh (in trust for Louise Fouracre) with myself as the secretary. I also need it (sic) a letter that is irrevocable so at any time Louise wants to become a director that I will arrange it and that I cannot stop her from becoming a director.

My current business will remain totally separate to this new business. Louise and Darren have just sold one of their businesses in Singleton for somewhere around $600,000 to $700,000. Mark and Tony have approached me about this new venture and they are also talking about changing accountants as well and I have recommended HQB.

18 The plaintiffs have claimed from the outset that they have not been able to enjoy the benefit of the agreements by reason of the defendants competing in the same area in which they promised not to compete.

The Motion

19 The defendants relied upon the affidavit evidence of Ian John Gray and Daniel George Morgan, solicitors, the former acting for all defendants other than the fourth, fifth and sixth defendants and the latter acting for those defendants. Each of those solicitors has provided an outline of the history of this matter together with the correspondence passing between the respective legal representatives for the purposes of establishing the protracted and continuing breaches of the Court orders by the plaintiffs and the alleged prejudice to the defendants.

20 There has been a continuing problem in respect of discovery. In October 2005 the plaintiffs’ solicitors wrote to the solicitors for the fourth, fifth and sixth defendants suggesting that they considered it implausible that the fifth defendant had no further documents to produce. The plaintiffs’ solicitors sought assistance from the solicitors for the fifth defendant in clarifying the position. In particular, on 10 October 2005, the plaintiffs’ solicitors suggested that in relation to Notices to Produce, the sixth defendant had not produced any documents showing the receipt of any payments whatsoever. The plaintiffs’ solicitors once again advised that they considered it implausible that the sixth defendant had not received any funds from Welsh's Water and Waste Pty Limited or from any of the other defendants. They asked for assistance from the solicitors for the sixth defendant.

21 The solicitor for the sixth defendant responded on 12 October 2005 indicating that the sixth defendant had received drawings from the business on only three occasions and provided details of those drawings. There was also the provision of the tax invoice from the fourth defendant and the listing of what is referred to as "dealings" with the defendants in relation to approximately $150,000 or $160,000. On 25 October 2005 the solicitors provided further material by way of bank statements and copies of sales customer summary registers in respect of the defendants leading to further provision of material that was then blanked out.

22 On 8 February 2006, the plaintiffs’ solicitors wrote to the solicitors for the fourth, fifth and sixth defendants advising that they had substantially completed preparation of the plaintiffs’ affidavits and were "hopeful that they will be completed by Friday this week". That letter advised that senior counsel had been retained to settle the affidavits and proposed that the directions hearing on 10 February 2006 be adjourned for a period of two weeks within which time, "we will be able to file and serve affidavit and you will then be able to review the affidavits to determine how long you will require to file any evidence in reply". That, of course, related only to the lay evidence. The letter continued,

In relation to obtaining an expert accountant’s report we will not be in a position to do so until your respective clients produce further documents. We are in the process of preparing further notices to produce which will request specific information which can then be briefed to our client’s expert accountant. In this regard we note that your clients have produced documents but have deleted financial information there from, or have omitted relevant information. We hope to be in a position to cause these notices to produce to be issued by Friday this week or early next week.

23 The defendants claim that the Court should not permit the plaintiffs to proceed further with this action by reason of the numerous breaches of Court orders and directions that have been made over the past 12 months. It is submitted that the conduct of the plaintiffs is totally inconsistent with the overriding purpose of the Rules which is the just quick and cheap resolution of litigation in this Court and in particular in the Commercial List.

24 The Commercial List is a fast track for litigation. Since the inception of case management in the Commercial Division in 1986 cases have been required to be prosecuted with the aim of speedy resolution of the disputes between the parties. Case management is not new. It is utilized to expedite cases in the Commercial List. The Act provides that a party in civil proceedings has a duty to assist the Court to further the overriding purpose and, to that effect, to participate in, the processes of the Court and to comply with the directions and orders of the Court s 56(3). The Act provides that a solicitor or a barrister must not by his or her conduct cause his or her client to be in breach of the duty (s 56(4)). The objects of case management are found in s 57, they are: the just determination of the proceedings; the efficient disposal of the business of the Court; the efficient use of available judicial and administrative resources; the timely disposal of the proceedings and all other proceedings in the Court at a cost affordable by the respective parties.

25 Section 59 of the Act provides that the practice and procedure of the Court "should be implemented with the object of eliminating any delay" other than that “reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial.” Section 60 provides that: “In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is "proportionate to the importance and complexity of the subject matter in dispute". The Practice Note governing cases in the Commercial List provides for cases to be managed without the attendance at numerous directions hearings. In this regard orders are able to be made by consent in Chambers.

26 Mr Taylor SC has today submitted that the Court should not accede to the application of the defendants to dismiss these proceedings. It was submitted that the Court should have regard to the delay, the reasons, if any, for delay and prejudice: Casauria v De Kever (unreported, Supreme Court of Victoria, Hayne J, 21 November 1994). Other relevant considerations include the length of any relevant delay and the nature of any procedural non-compliance in the conduct of the proceedings; the delay between the accrual of the cause of action and the commencement of the action; any relevant change in circumstances since the cause of action accrued; and the prior attitude and conduct of the defendants or relevant party. There is also the nature and extent of prejudice to the plaintiffs as well as the plaintiffs’ explanation for any delay; the degree of personal fault for the delay and the degree to which the plaintiffs have kept the defendant informed of the cause of the delay.

27 The genesis of the Uniform Act and Rules is the Woolf reforms in England. A most convenient history relating to the introduction of those reforms is to be found in Idoport Pty Limited & Anor v National Australia Bank & Ors (2000) 49 NSWLR 51 at 55. The Court of Appeal in England in Price v Price (trading as Poppyland Headware) [2003] 3 All ER 911, was considering a case in which there had been an application for the extension of time for service of the claim. Although the situation in England is different because the Court has to give consideration to the implication of Articles of the European Convention on Human Rights, set out in the Human Rights Act 1998, the approach adopted by the Court is helpful. Delivering the judgment of the Court (Brooke, Sedley and Hale LLJ) Brooke LJ referred to the judgment of Lord Woolf in Biguzzi v Rank Leisure PLC [1999] 4 All ER 934 and suggested that his Lordship had made it clear that the new rules had issued in a new regime and that it was no longer useful to look back at decisions prior to the introduction because that was a different regime. Brooke LJ said at page 920-921:

We no longer have to succumb feebly to the argument that a defendant was already so prejudiced that any further prejudice caused by a further long delay could not be regarded as significant. On an occasion like this, we have to look objectively at the extent to which the defendant would be prejudiced if the case was allowed to continue, whether on the enlarged basis for which the claimant is now contending or at all, and then consider whether and the extent to which the claimant's cumulative defaults have caused that prejudice. Our final duty is to decide whether it would be a disproportionate response to stop the case now by reducing the expense of time outright or whether it may be possible to fashion a more proportionate response.

28 Mr Taylor SC presses for a lesser approach. He submitted that to stop the case would be out of all proportion in the circumstances that I have outlined. In Biguzzi Lord Woolf dealt with alternatives at 940:

There are alternative powers which the courts have which they can exercise to make it clear that the courts will not tolerate delays other than striking out cases. In a great many situations those other powers will be the appropriate ones to adopt because they produce a more just result. In considering whether a result is just, the courts are not confined to considering the relevant position of the parties. They have to take into account the effect of what has happened on the administration of justice generally. That involves taking into account the fact of the courts ability to hear other cases if such defaults are allowed to occur. It will also involve taking into account the need for the courts to show by their conduct that they will not tolerate the parties not complying with dates for the reasons I have indicated.

His Lordship went on to refer to the ability of the Court to make an indemnity order for costs as “an important power".

29 Section 58 applies to this application and imposes an obligation on the Court to have regard to certain matters in deciding the dictates of justice in a particular case. The first requirement is to have regard to the provisions of s 56 and s 57. In that regard there is little doubt that the overriding purpose of the just, quick and cheap resolution of the real issues in this litigation has been compromised. Had the plaintiff complied with the Court orders this case more probably than not, would probably have been heard and determined before now.

30 Section 57 requires consideration of a number of features of the objects of case management. As to the efficient disposal of the business of the Court; I am not persuaded that the outcome of this application will have an adverse impact on the efficiency of the list whether or not the defendants are successful. Certainly, if the case were to be struck out, there would be one less case in the list. As to the efficient use of available judicial and administrative resources; one could argue that the judicial resource that is being utilised today could well be doing something else of a more substantial nature but on the other hand the parties to litigation in the Commercial List are entitled to have judicial resources available to hear an application of this importance.

31 The fourth object, the timely disposal of proceedings and all other proceedings in the Court at a cost affordable by the respective parties is an object of rather larger proportion. What is affordable to one party may not be affordable to another. If a party is, in fact, an individual with not a great deal of money and is required to return to the court armed with legal representatives time and time again, it can hardly be said that the efficiencies of case management and the timely disposal of proceedings are being met.

32 There is no evidence before me today about the capacity of each of the parties and their ability to "afford” the proceedings in their present very unsatisfactory state. The effect of that objective, however, is that case management is to ensure parties are able to have their proceedings heard efficiently and relatively inexpensively. Sometimes case management can increase the cost to the parties and one has to be diligent in each case to work out just how much management by the Court should occur in each case. That is why the Practice Note provides the alternative for parties to have consensual orders made in Chambers.

33 The Act also requires consideration of a series of matters that I regard as relevant (s 58(2)(b)). The first is the degree of difficulty or complexity to which the issues in the proceedings give rise. This case does not seem to me to raise a high degree of difficulty or complexity. It is a case in which the plaintiff claims the defendants sold them a business and, effectively, continued to operate the very same business that they sold to the plaintiffs by reason of the conduct alleged. It may provide difficulties in the gathering of evidence, as these cases do, in that such conduct is usually covert and the plaintiff has to be diligent to utilise the Rules to obtain evidence proving the allegations of such conduct.

34 The second matter is the degree of expedition with which the respective parties have approached the proceedings. I have already dealt with the plaintiffs conduct, however I should say that conduct of the defendants and the defendants’ solicitors in this case is in some respects exemplary. They could have objected to some of the Notices to Produce being served because they related to a non-entity. They did not do so. They pointed out the defects and still complied with the requests from the plaintiffs. Thus the defendants have presented through their lawyers as wanting to get on with this litigation. On the evidence before me, it seems that they have been waiting patiently and professionally for the plaintiffs to effectively get their cases in order so they would know the cases that they have to meet.

35 The next matter is the degree to which any lack of expedition was beyond the control of any party. Mr Fraser has set out the matters that he has attended to since he was instructed in July 2005. There is always the prospect that when parties change solicitors there will be a time during which the new solicitors have to become acquainted with the case so that they can properly assist their new client. It seems to me that Mr Fraser's position when he took over the case was a difficult one, the pleadings needed amendment and attention had to be given to the documents that had been produced on subpoena. It is apparent that at least one important document was lost between the first set of solicitors and the second and this had to be obtained through other means.

36 Mr Fraser was faced with the task of preparing all relevant evidence in what might be seen to be a very short timeframe; it was but six weeks to the time of trial when he was instructed. It is all very well for courts to be critical of solicitors but in the circumstances, when one views the history of this case objectively, it is clear, notwithstanding what I have said about the degree of difficulty or complexity, that Mr Fraser had a very large task on his hands when he took over this litigation. It also appears that the plaintiff, through Mr Fraser, moved very promptly to try and use the alternative mechanism for dispute resolution, mediation, that is endorsed by this Court.

37 The reference to circumstances beyond the control of the respective parties does not seem to me to have any relevance to my consideration here. I have already dealt with the next item in s 58(2), that is the degree to which the respective parties have fulfilled their duties under s 56(3). That is the duty to assist the Court to further the overriding purpose. I am satisfied that the defendants have discharged that duty. I am not satisfied in the circumstances that the plaintiff has been in a position to do so.

38 Another relevant matter that I should give consideration to is the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction. These are causes of action brought by these plaintiffs that would not be out of time if I strike this matter out or dismiss it today. The plaintiffs may be able to commence proceedings at a later time when they are committed to their duty under s 56 (3). One has to weigh that matter up with the obvious cost that would be further incurred.

39 What is the injustice to the defendants if I let the case go forward whilst a party has failed to comply its duty under s 56(3)? Mr Taylor SC submitted that there is no evidence filed by the defendants of real prejudice. Mr Morgan in his affidavit claims that the fourth, fifth and sixth defendants have been "put to unnecessary expense" by the persistent breaches of the timetable by the plaintiff. Mr Gray claims that the first, second, third, seventh, eighth and ninth defendants have been “put to unnecessary expense" due to the persistent breaches of the timetable. Mr Taylor is correct. The only prejudice that has been identified is the unnecessary expense and on each of the occasions that has been the subject of a costs order of the Court in favour of the defendants. There is no suggestion in this case that prospective witnesses may not be available or that parties might not have access to information or documentation for the purposes of defending the claim.

40 Finally, I should consider the effect generally on the administration of justice. There is no doubt that the Commercial List is a busy list. There is no doubt that when parties find themselves unable to meet the rigours of the fast track, the way in which the administration of justice is best served is by the parties consensually adjusting the timetable. However parties must expect the Court to act when they breach Court orders and when they do so in the way that these plaintiffs have, the parties can expect that the Court might invoke the most serious of the Court's powers which can deny the party access to the Court.

41 If the Court orders had been complied with the case would have been heard within nine months of the filing of the process. That would have been exemplary. Is it a proportionate response to deny access in this case? I think not. A proportionate response can be effected by providing what Mr Taylor SC referred to as one last chance, however, with some serious costs consequences.

42 Mr Stanton submitted that "enough is enough". That is an approach adopted by Brooke LJ in Price v Price in which his Lordship said at 921:

In my judgment this is a case in which this Court has to say ‘enough is enough’, and like the judge (though for different reasons) to refuse the extension of time sought, unless it were possible to impose conditions on any order for an extension.

In this case it is possible, and it seems to me that the dictates of justice in this case require that I refuse the application by the defendants and that the application for the extension made by the plaintiffs should be granted with very stringent conditions.

43 During the course of submissions this morning, I indicated to Mr Taylor that I was concerned about the identity of the person against whom costs orders should be made. One of the reasons for that observation is that on 25 November 2005 the Court was advised that the evidence of the lay witnesses would be on by 16 December 2005. Indeed, the letter of 8 February 2006 from the plaintiffs’ solicitors to the defendants’ solicitors advised that the lay evidence could be on by Friday 10 February 2006. Today, with his usual candour, Mr Taylor SC informed the Court that he had been instructed to ask for an additional two weeks but advised that four weeks was a more realistic time frame.

44 The Court was advised on 25 November 2005 that expert evidence could be filed and served by 3 February 2006. The letter of 8 February 2006, to which I have already referred, suggests that the filing of such evidence has to await other matters. Mr Taylor SC submitted that there would need to be an extension to 3 weeks after documents are produced pursuant to a Notice to Produce. Mr Fraser ’s affidavit evidence is that he has prepared a draft letter to the expert accountant which is approximately 11 pages in length. I have not been informed who the expert is. I have not been informed whether the expert is available within four weeks or five weeks time. It is obvious that experts are busy people, and to suggest that an expert can simply drop whatever he or she is doing to then provide a report within 21 working days or less, in what might be complicated circumstances, does not provide me with a great deal of confidence in relation to the estimates of time provided.

45 This case has been plagued by under-estimates and, perhaps, unrealistic estimates. The Court must be assisted by the profession making sure that the estimates are realistic. The duty of the client and the duty of the barrister and/or solicitor pursuant to s 56 requires a proper estimate to be made having regard to all the circumstances. That means that counsel have to be briefed within appropriate timeframes. In this case it would appear that it was only last week that the plaintiff gave consideration to briefing counsel to settle the affidavits that should have been filed long ago.

46 I refuse the fourth, fifth and sixth defendants' application to dismiss the proceedings. I grant leave to the plaintiffs to provide a timetable within which their evidence can be prepared. I intend to set this matter down for hearing at the next directions hearing when the timetable is the subject of final orders. I direct that the plaintiffs provide to the defendants a timetable for future preparation of this case by 5 pm on Wednesday, 15 February 2006. I list this matter for directions in the Commercial List on Friday 17 February 2006. Should the parties agree to the timetable produced by the plaintiffs they are at liberty to have those orders made in Chambers pursuant to the Practice Note.

47 One of the reasons that I did not dismiss the application was the availability of what Lord Woolf referred to as the “important power” to order indemnity costs. It seems to me that is an important factor in this case in the plaintiffs’ favour in resisting the orders in the Motion.

48 I am satisfied that the plaintiffs conduct in this case has caused the defendants to incur the costs of 10 February 2005 without any proper basis. Accordingly, I order that the plaintiffs pay the defendants costs of the appearance on Friday 10 February 2006 on an indemnity basis. That brings me to the costs of today. Mr Taylor submitted that had the defendants agreed to an extension of time on Friday then the costs of today could have been avoided. Of course, that misses the point in respect of the true position today. I do not know and Mr Taylor does not yet know the true position in respect of the plaintiffs ability to serve evidence pursuant to the Practice Note within two weeks, four weeks or perhaps longer. The parties have had to debate this matter today in circumstances where a plaintiff has not properly instructed counsel in respect of the preparation for trial when the plaintiff agreed by court order or direction to file its evidence well before today. This seems to me to be an exquisite example of a case in which indemnity costs should be ordered.

49 I order that the plaintiff pay the defendants costs of today on an indemnity basis.

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