Thiess Contractors Pty Ltd v Murchison Zinc Co Pty Ltd
[2003] WASC 207
THIESS CONTRACTORS PTY LTD -v- MURCHISON ZINC CO PTY LTD [2003] WASC 207
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 207 | |
| Case No: | CIV:2137/1996 | 20 AUGUST 2003 | |
| Coram: | TEMPLEMAN J | 31/10/03 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Further directions given | ||
| B | |||
| PDF Version |
| Parties: | THIESS CONTRACTORS PTY LTD (ACN 010 221 486) MURCHISON ZINC CO PTY LTD (ACN 008 950 178) |
Catchwords: | Practice and procedure Case evaluation conference Lists of Issues for expert witnesses Whether agreements between experts require pleadings to be amended |
Legislation: | Nil |
Case References: | Murchison Zinc Co Pty Ltd v Thiess Contractors Pty Ltd [2000] WASC 71 Murchison Zinc Co Pty Ltd v Thiess Contractors Pty Ltd [2000] WASCA 167 Murchison Zinc Co Pty Ltd v Thiess Contractors Pty Ltd, unreported; SCt of WA (Templeman J); Library No 980288; 1 May 1998 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
MURCHISON ZINC CO PTY LTD (ACN 008 950 178)
Defendant
Catchwords:
Practice and procedure - Case evaluation conference - Lists of Issues for expert witnesses - Whether agreements between experts require pleadings to be amended
Legislation:
Nil
Result:
Further directions given
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Mr P G Clifford & Mr R M Wilenski
Defendant : Mr J Gilmour QC & Mr G H Murphy
Solicitors:
Plaintiff : Tottle Partners
Defendant : Pullinger Readhead Stewart
Case(s) referred to in judgment(s):
Murchison Zinc Co Pty Ltd v Thiess Contractors Pty Ltd [2000] WASC 71
Murchison Zinc Co Pty Ltd v Thiess Contractors Pty Ltd [2000] WASCA 167
Murchison Zinc Co Pty Ltd v Thiess Contractors Pty Ltd, unreported; SCt of WA (Templeman J); Library No 980288; 1 May 1998
Case(s) also cited:
Nil
(Page 3)
- TEMPLEMAN J:
Introduction
1 This action, which is progressing slowly towards trial in the Long Causes List, has been the subject of a number of directions hearings. The most recent of those hearings, on 20 August 2003, was intended to be a case evaluation conference. I directed that:
"At the case evaluation conference the parties be prepared to provide information about witnesses they propose to call in relation to each outstanding issue and to provide best estimate of length of time each witness will be required to give evidence."
2 The object of this exercise was to determine the likely length of trial, a matter about which there was substantial disagreement.
3 The reference to "each outstanding issue" includes a list of issues, distilled from the pleadings, about which there has been extensive conferral between experts practising in several different engineering disciplines.
4 At the case evaluation conference, an issue arose as to the significance of an agreement reached at a conference between two such experts on 8 May 2003, following meetings on 27 and 29 November 2002. The defendant contends that the agreement reduces the ambit of the dispute to such an extent that substantial parts of the claim should now be excised. The plaintiff disagrees. This issue must be resolved before the action can proceed.
Background
5 I have summarised the plaintiff's claim in two previous interlocutory judgments: Murchison Zinc Co Pty Ltd v Thiess Contractors Pty Ltd, unreported; SCt of WA (Templeman J); Library No 980288; 1 May 1998 and [2000] WASC 71. It will be convenient to repeat the summary set out in the second of those judgments, at par 2 – par 12, inclusive. They are as follows:
"The plaintiff is a mining company which, at the material time, was acting as agent for a group of joint venturers. The plaintiff carries on business as an underground and civil works contractor.
(Page 4)
- The action arises out of a contract made between the parties in September 1994 which was incorporated in a written document executed in November 1995.
The contract was for the excavation and construction of a decline. It was a schedule of rates contract comprising a number of documents including special and general conditions, drawings and specifications and the schedule of rates.
In its statement of claim, the plaintiff contends that on about 3 and 4 December 1994, the Superintendent, acting on behalf of the defendant, directed the plaintiff to depart from the original design in a way which resulted in the decline being excavated at a level some 12 metres higher and 2.21 metres to the right of the location shown in the original drawings.
The plaintiff then alleges that on 7 January 1995, in the early stages of construction of the decline, a portion between chainages 23 and 28 collapsed. The plaintiff alleges that as a result of the change in the location of the decline and the subsequent collapse, it was necessary to employ a work method which differed significantly from that envisaged for the implementation of the original design.
The plaintiff contends that the different work method was required because the ground conditions which it encountered were different from those contemplated by the scope of the original works. The plaintiff contends that the work which it carried out in consequence of the ground actually encountered, entitled it to a variation to the contract and therefore, to greater remuneration.
The plaintiff contends also that its rate of advance in the construction of the decline was affected by substantial inflows of water which were encountered at chainage 650 and which thereafter required a different excavation cycle to be employed. This, it is said, also entitled the plaintiff to a variation of the contract.
It is then said that between about 3 and 31 July 1996, the main ventilation fan, which the defendant was obliged to provide pursuant to the contract, was removed by the defendant for unscheduled maintenance. The plaintiff alleges
(Page 5)
- that it was unable to procure a ventilation fan of equivalent performance with the result that inadequate ventilation was provided through the decline. This is described in the pleading as a ventilation failure.
The plaintiff contends that as a result of the ventilation failure, it was required to modify its performance of the works in all areas in which exhaust emitting equipment was used. This, it is said, also entitled the plaintiff to a variation of the contract.
The plaintiff pleads that the ground encountered, the water encountered and the ventilation failure, each entitled the plaintiff to the same variation.
The plaintiff's complaint is that the defendant paid for the works as if they had been performed under the original contract. The plaintiff therefore claims the difference between its actual costs and the amount which it has been paid by the defendant. This amounts to $3,566,632 from chainages 0 to 650 and $3,734,195 from chainages 650 to
6 In par 44 of my reasons, I said:
" … it is not my intention have this case tried on the pleadings. I shall, in due course, direct the parties to confer with a view to identifying a list of issues which require to be adjudicated. Although the issues will, of course, be based on the pleadings, it should be possible to formulate them in a clear and concise manner. As I have said, I expect that once the experts have conferred, the issues will be narrowed very considerably."
7 My judgment was the subject of an appeal to the Full Court. In dismissing the appeal, the Full Court commented on my proposal to proceed by way of issues:
"In circumstances in which the Judge having the charge of the matter has decided that the trial will take place upon the basis of agreed or specified issues, with the pleadings playing only a subsidiary role, then, it seems to us, it is open to that Judge to ensure that any want of clearness in the pleadings themselves is cured in the process of stating the issues for adjudication. There is no reason to assume that his Honour will not, in that process, be astute to ensure that the applicant
(Page 6)
- [ie, the defendant] raised of the case that it must meet in such a way as to enable it to prepare for trial in as economical and efficient a manner as possible. Indeed, it seems to us that it was those very objectives which led his Honour to adopt the course he took."
Murchison Zinc Co Pty Ltd v Thiess Contractors Pty Ltd [2000] WASCA 167 at par [39]
8 The parties did confer: and they agreed a list of issues for adjudication. Before referring to the issues which are the subject of the recent agreement between the experts, it is necessary to consider in more detail the way in which the plaintiff puts its case in relation to the ground conditions encountered in carrying out the excavation works.
The claim relating to ground conditions
9 In par 8(a) of the statement of claim, the plaintiff pleads that part of the works it was required to carry out under the contract was the excavation of an area of ground at which a portal was to be established at chainage O : and from that location a decline tunnel ("the Decline") was to be excavated in accordance with the design set out in the Contract drawings and Specifications.
10 The methods of excavation in various sections of the Decline, the site resources and the excavation cycle to be used are pleaded in paras 8(b) to (f). These are said to constitute the "Work Method".
11 However, the plaintiff was required to modify the work method in circumstances to which cl SP 7.33 of the Specifications applied par 5(d)(i) – (iii).
12 In par 9, the plaintiff pleads that:
"The excavation method, ground support method and materials pleaded in para 8 … were set out in the Work Method and tendered on a common assumption (that) the ground conditions to be encountered by the Plaintiff would be of a character as follows:
(a) the ground could be excavated (by the full face system) and supported using the Work Method; and
(b) would require, as ground support by way of rockbolts, no more than the use of an average of 4 no. 2.4 metre long, 20 millimetre diameter fully grouted rock bolts
(Page 7)
- per metre of development advance applied in combination with the mild arch profile shown in the Drawings; and
- (c) would not require spiling bars or other ground support ahead of the advancing face;
(d) would not require the application of shotcrete (fibrecrete) of a thickness greater than 100mm;
(e) would not require steel sets beyond CH25." (my emphasis)
13 It is to be noted that these particulars do not identify the expected ground conditions by reference to any geological description of the ground encountered.
14 Particulars are then given of the matters giving rise to the common assumption. These include:
"(i) the physical characteristics were set out in Appendix A and Appendix F of the Appendices [to the specifications] both of which the Defendant supplied to the Plaintiff for use in preparing its tender.
…
(vii) the Barrett Fuller Report (being Appendix A of the Appendices) pre-dated the time of tender and was, on its proper construction, a preliminary report which recommend further geological and geotechnical investigations directed to designing the appropriate ground support. The Defendant's design (being comprised in the matters pleaded in subparagraphs 9(iii), 9(iv) and 9(v) above) (the "Design") was produced by the Defendant after the date of that report and was treated by the Defendant as appropriate and adequate for the geological and geotechnical conditions to be encountered."
15 Pausing there, the plaintiff's case does not appear to rely on the Barrett Fuller Report, which is described as "a preliminary report". The point seems to be that because the defendant's design post-dated the Barrett Fuller Report, there is an inference that the recommended
(Page 8)
- geological and geotechnical investigations used been carried out, and the results incorporated the design.
16 Although the term "geotechnical conditions" is not defined, I take it to mean the ground conditions which dictate the technical design of the decline: for example, the kind of ground support required.
17 To return to the statement of claim: in par 10, the plaintiff pleads that the Schedule of Rates was also based on a common assumption which included the following:
" … suprolite occurred between CH 25 and CH 90, suprock occurred between CH 90 and CH 300 and fresh rock occurred from CH 300 onwards …."
18 The plaintiff then pleads, in par 13 of the statement of claim:
"If, in carrying out the Works in accordance with the September 94 Contract and subsequently the November 95 Contract, the Plaintiff encountered ground conditions which differed from those contemplated by the specifically defined scope of the Works … being:
(a) ground which required the installation of more than an average of 4 rockbolts per metre of development advance; or
(b) ground which required a change in profile from that specified in the Drawings; or
(c) ground which required the installation of spiling bars or other ground support ahead of the advancing face; or
…
(d) ground which had a material impact on the rate of advance by the Plaintiff in the excavation of the Decline; or
(e) ground which required the Plaintiff to vary its site resources in order to meet quantities of individual items exceeding the applicable limits of accuracy,
the Plaintiff was entitled to claim and be paid extra costs …."
(Page 9)
19 Again, it is to be noted that "ground conditions" are identified in a way which does not involve any geological description.
20 Paragraph 14 pleads an alternative claim for a variation if the plaintiff "encountered ground conditions which differed from those contemplated by the specifically defined scope of the Works" … or "which resulted in a change to the character and quality of any materials or work comprised in the Works".
21 All of the pleaded matters to which I have referred thus far are put in issue by the defence.
22 It is common ground that on 4 December 1994, the Superintendent appointed under the contract, directed the plaintiff to construct the Box Cut in accordance with a revised design. This required the Decline to be constructed in a different position from that intended originally.
23 As a result of the conferral between experts (to which I shall refer in more detail below) it is now agreed that the portal was constructed 10m higher than the location shown on the tender drawings and that:
"in addition to the vertical rise of about 10m the alignment of the decline was in fact shifted to the right (looking downhill along the decline) by about 2.2m."
24 It is common ground that the construction of the Decline in the new position was halted on 7 January 1995, when a portion of the Decline between CH 23 and CH 28 collapsed. The plaintiff pleads in par 23 of the statement of claim that:
"The collapse occurred due to the geological conditions there encountered which differed and could reasonably be expected thereafter to differ from those contemplated by the specifically defined scope of the Works (the specifically defined scope relevantly being as pleaded in paragraphs 4, 5, 6 and 8 …)."
25 The specifically defined scope of the Works is not pleaded as such in paragraphs 4, 5 and 6 of the statement of claim. Those paragraphs identify the contractual documents in which the Works are described, and identify terms on which the plaintiff relies. And as I have noted, par 8 sets out "part of the Works" the plaintiff was required to carry out: this being the excavation of the portal, and the Decline.
(Page 10)
26 The contractual documents include the specifications and appendices, of which Appendix A is the Barrett Fuller Report referred to above. I have noted that the plaintiff pleads that the Barrett Fuller Report was of a preliminary nature, and appears to place no reliance on it.
27 The plaintiff goes on to plead that the ground conditions it encountered and which it reasonably expected to encounter differed from those contemplated "by the specifically defined Scope of the Works in the manner and to the extent pleaded in paras 25, 26, 27 and 28 of the Statement of Claim".
28 Paragraph 25 is not directly in point. It is there alleged that as a result of the relocation of the works, the plaintiff carried out excavation work "in physical ground conditions" not described in the contract … "which conditions necessitated a different method of working".
29 Paragraph 26 is more relevant. It is alleged that the "physical characteristics" of the ground conditions encountered were as these set out, with further particulars in Schedule 3 to the pleading. What is set out, however, is not so much a catalogue of physical characteristics but of geological features.
30 Then in par 27 and par 28, the plaintiff's claim is revealed. In par 27 it is alleged that the physical conditions of the ground actually encountered by the plaintiff differed from those for which it contracted, being outside the specifically defined scope of the works and necessitating the adoption of a different method of work and ground support design.
31 Paragraph 28 sets out the reasons for the adoption of these different methods. These were, in essence, to ensure that the excavation proceeded in a safe and cost effective way, requiring the use of particular kinds of ground support, as pleaded.
Conferral between experts
32 As I have noted, at my direction, a list of issues was prepared by the parties as a basis for conferral between appropriately qualified experts. The object of the conferral was:
"to resolve issues as far as possible and to identify any remaining issues."
(Page 11)
- There are 21 issues under the heading "Ground conditions, water conditions and ground support design". The experts nominated by the parties are, for the plaintiff, Mr P J Burgess of Coffey Geosciences Pty Ltd: and for the defendant, Mr J C Braybrook of Douglas Partners Pty Ltd.
33 Mr Burgess and Mr Braybrooke met in Perth from 14 – 16 January 2002. They conferred in Sydney, on 27 and 29 November 2002. Following further discussion, they produced a report dated 8 May 2003 which they have both signed.
34 The report is most helpful. It states the issues, summarises Mr Burgess' and Mr Braybrooke's respective views in a concise manner, records such agreements as they were able to reach, and identifies outstanding points of difference.
35 I set out that part of the report relating to issues 2, 3, 4 and 5. In it, Mr Burgess is referred to as "PJB", and Mr Braybrooke as "JCB":
"ISSUE 2
2) What were the significant geological features (meaning those which affected the choice of ground support) of each of the decline routes proposed in the Barrett Fuller report for:
a) the soft rock section; and
b) the hard rock section?
PJB and JCB consider that the other decline routes described in the Barrett Fuller (BF) report are of peripheral interest.
PJB and JCB agree that the significant geologic (sic) features as discussed include features such as:
• Saprock, Saprolite,
• Geologic Structures,
• Dykes,
• Depth of burial,
• Groundwater conditions
(Page 12)
- PJB and JCB agree that these features are discussed in the BF Report and have been highlighted in their respective statements. Each party accepts that there may be difference in emphasis in the relative importance given to each of these features in their statements on these issues by both parties.
ISSUE 3
3. Was the Barrett Fuller report of as much assistance in describing the ground conditions at the location at which the decline was developed as it was in describing the ground conditions at the location shown in the Drawings?
PJB and JCB agree that the wording "Barrett Fuller report" in the Issue 3 question can be taken to include all reports included in the compilation report "Contract Document Appendices A-D", dated October 1994.
PJB and JCB agree that the word "Drawings" in the Issue 3 question can be taken to include the Drawings issued as part of the Tender Documents and that the two alignment locations described have the difference described in Issue 1.
PJB and JCB agree that the reports were of as much assistance in describing the ground conditions at the location at which the decline was developed as they were at the locations shown on the Drawings.
ISSUE 4
4. What were the significant geological features (meaning those which affected the choice of ground support) of the decline route in fact excavated in:
a) the soft rock section; and
b) the hard rock section?
PJB and JCB agree that the significant geological features that affected the choice of support as encountered were essentially the same as described in Issue 2, that is:
• Saprock, Saprolite,
• Geologic Structures,
(Page 13)
- • Dykes,
• Depth of burial
• Groundwater conditions
- ISSUE 5
5. If the significant geological features for the Barrett Fuller route differed from the significant geological features of the ground in fact excavated, in what way did they differ?
PJB and JCB agree that the wording "Barrett Fuller route" in the Issue 5 question has now been taken to mean the tendered route at the current portal location and the significant geological features are those features in all of the geotechnical reports available at the time of tender. This includes all reports included in the compilation report "Contract Document Appendices A-D", dated October 1994. Appendix F is also included in this grouping of reports.
PJB and JCB agreed that the significant features did not significantly differ."
The significance of the agreement relating to the ground encountered issues
36 The defendant submits that having regard to the form and objective of the direction requiring the experts to confer, their agreement disposes of the issue as to ground encountered. Thus, it is submitted, the plaintiff should amend its pleadings and particulars so as to delete that part of its case.
37 The plaintiff opposes that course. As counsel for the plaintiff put it, in issue 5:
"the experts … talk about geological features, not the geotechnical issues that led to the method of construction or the work method as we have pleaded it. They are two entirely different things." (TS 439)
38 In my view, there is some merit in each of the rival contentions. I have analysed the pleadings relating to the ground encountered issue in order to demonstrate that the real issue is not whether the geological features of the ground encountered differed from those anticipated. As
(Page 14)
- I have noted, the anticipated ground conditions are not described in the pleading by reference to geological features. They are defined by reference to the work method the plaintiff proposed to adopt. Although in par 10 of the statement of claim it is alleged that the Schedule of Rates was based on geological features including the incidence of saprolite, saprock and fresh rock between defined chainage, it is not alleged that the reality was any different. As I have noted, par 26 of the statement of claim refers to the "physical characteristics" of the ground actually encountered, not to its geological features.
39 The real issue emerges from par 27 and par 28 of the statement of claim. That is encapsulated in the experts' Issue 15, which is as follows:
15. Did the ground encountered in developing the decline require, for the safe excavation and support of the excavated ground:
(a) the installation of steel sets from CH25 to CH93
(b) the installation of rockbolts of the quantity installed by the plaintiff, as shown in schedule 6 to the statement of claim;
(c) the installation of different types of rockbolts (as shown in schedule 6 to the statement of claim) in place of 2.4 metre, 20 millimetre diameter fully grouted rockbolts;
(d) the installation of spiling bars to the extent utilised by the plaintiff;
(e) the application of shotcrete to the extent utilised by the plaintiff, as shown in schedule 5 of the statement of claim;
(f) the use of a top heading and bench method between CH25 and CH389;
(g) a change from the profile shown in the Drawings to:
(1) a full arch profile from CH93 to CH389;
(2) a modified full arch profile from CH389 onwards?
(Page 15)
- Issue 15(a)
PJB and JCB agree that they differ as to their approach in using steel sets as support. PJB takes the approach that the use of steel sets is an integral part of the RMR system of rock mass classification based essentially on South African and USA experience whereas JCB takes the approach of the 'Q' system of rock mass classification based more on European experience where shotcrete can be used in most situations rather than steel sets.
Issues 15(b) – to – (e)
PJB and JCB agree that the support items referred to in this section were required.
JCB does not agree that that the total quantities of such support items used as given in the schedules were required due to wastage of materials and inexperience of mining personnel.
Issue 15 (f)
PJB considers that the heading and bench method is a safer method than full face under the circumstances that prevailed at the decline and were thus required.
JCB considers that full face excavation using shotcrete is a safe procedure if carried out using the right equipment and experienced personnel but with the personnel and equipment on site it may have been safer to use the Heading and Bench method.
Issue 15(g)
PJB and JCB agrees that the full arch profile was the preferred design for the section Chainage 93 to CH 389.
PJB and JCB understand that the modified arch profile referred to in the Issue 15(a) is in fact the flat arch design (as shown on the drawing entitled 'Gossan Hill Project, Typical Decline Section Ref No. GH 006A). As such PJB and JCB agree that this flat arch profile was not 'required' beyond Ch 389 on the basis of encountered ground conditions but
(Page 16)
- given that it was the design that was called for under the Contract it was probably acceptable to revert to this design."
40 In relation to Issue 15, therefore, Mr Burgess and Mr Braybrooke have reached some agreement: and they have summarised their differences in a succinct and helpful manner. Those differences must be resolved at trial. However, their resolution does not involve a comparison between the expected and actual geological features of the ground encountered, about which the experts have agreed. The plaintiff's real case is that the work method was inappropriate for the ground actually encountered.
41 In reaching that conclusion, I am mindful of the apparent qualification to the agreement by Mr Burgess and Mr Braybrooke in relation to Issue 2. It was to the effect that they each accepted that in their respective statements, there might be "difference in emphasis in the relative importance" given to each of the significant geological features of the decline routes proposed in the Barrett Fuller Report.
42 In order to understand that qualification, I directed the parties to send me the respective reports, with a covering letter, if they wished to do so, highlighting the matters relevant to the apparent qualification.
43 In response to that direction, the plaintiff's solicitors sent me a lever arch file containing not only Mr Burgess' statement, but also, a number of other reports and engineering drawings and some further submissions. These included the following:
"7. Whilst the questions in the List of Expert Issues were agreed between the parties and their solicitors, the wording of the Memorandum of Conferral signed in May 2003 was dealt with between the experts and, at least in the Plaintiff's case, did not involve the Plaintiff's Solicitors or Counsel.
8. The final wording of the Memorandum of Conferral is one drawn by the engineers. It must be considered in light of the discussions which occurred between the experts, and not as a considered form of words settled by the lawyers or the parties and signed as though it were a contract.
9. To the extent approaching the statements in Issues 2 to Issue 5 involves any application of contractual principles or analogous principles (which was not the
(Page 17)
- Plaintiff's contention), the approach to understanding the wording must be at least as wide as the current approach of the Court to questions of factual matrix: as to the scope of factual matrix, see LMI Australia Pty Ltd v Baulderstone Hornibrook Pty Ltd BC200301670 paras 31-57 (attached).
- 10. To understand the opinions expressed by Mr Burgess in his 1 October Report, and the subsequent approach and agreements reached between Mr Burgess and Mr Braybrook embodied in the May 2003 Memorandum of Conferral, it is necessary to have regard to, and a detailed understanding of the following:
• the Burgess Report;
• the content of the Barrett Fuller (BFP Report);
• the content of the Rockwater Report;
• the content of the remaining contract documents relevant to geotechnical, geological and hydrogeological issues."
45 That proposition is contrary to the well-established principle that:
"expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation."
(Seaman on Civil Procedure, par [36A.3.1B])
46 The memorandum of conferral signed by Mr Burgess and Mr Braybrooke appears to me to have that desirable quality of independence. Insofar as it records agreement, it is sufficiently clear in its terms. It therefore requires no extrinsic evidence for its interpretation. The objective of conferral is to reach agreement as far as possible. Once an agreement has been reached, it is neither necessary
(Page 18)
- nor desirable to go behind it. The relevant issue is then closed. So far as the apparent qualification is concerned, I have considered
• Mr Burgess' report dated 1 October 2001 entitled Gossan Hill: Expert Report Geotechnical Aspects.
• Mr Braybrooke's report on the Gossan Hill Decline entitled Response to Allegations in Statement of Claim, dated 14 September 2000; and his "Statement of the Substance of the Expert Evidence of John Braybrooke". The statement is not dated, but appears to have been transmitted by Mr Braybrooke's facsimile on 15 September 2000.
Summary
48 The position thus far is as follows.
• I directed that the action is to be tried on issues, based on the pleadings.
• The Full Court has approved that course.
• The parties have formulated the technical issues they wish to have resolved.
• As a result of extensive conferral between experts, some of the issues have been resolved and others narrowed.
• Insofar as issues have been resolved, they are now closed.
The way forward
49 I do not accept the defendant's submission that as a result of the agreement between experts, the plaintiff should amend its pleadings so as to delete a substantial part of its case. That is because the technical
(Page 19)
- issues raised in the pleadings have been largely subsumed in the List of Issues for expert witnesses.
50 The object of the case evaluation conference is to nominate the witnesses who will be called by each party at trial, to highlight the topics about which they will give evidence and to estimate the time likely to be required for each witness to complete his or her evidence.
51 I consider it necessary to proceed in this way because, as I have noted, the parties have widely differing views about the length of trial. This is an unsatisfactory situation, given the pressure on the Civil List, which pressure is likely to continue into the foreseeable future.
52 If the parties over-estimate the length of the trial, the result would be to waste sitting days which the Court cannot afford to lose. It is equally undesirable to under-estimate. If the trial was to be adjourned part-heard, it is likely that there would be a long delay in concluding it, with all the disadvantages such a course would entail.
53 I intend now to make a formal case-management direction requiring the parties to prepare a short summaries of the way in which they propose to present their respective cases at trial. Each summary should contain an estimate of the time likely to be taken in opening and closing addresses. I shall expect the openings to include submissions identifying the contractual provisions on which the party relies, and their effect.
54 The summary should then set out the name of each witness who will be called. Under each name should be set out:
• the issues to be addressed by that witness, identified in the case of expert witnesses, by reference to the list of issues, excluding Issues 1, 2, 3, 4 and 5
• the expected time for the examination-in-chief of that witness, assuming his or her evidence is given largely by way of a statement or report, with some additional clarification.
55 The parties will be directed to exchange the summaries and to make their best estimate of the length of time required for the cross-examination of each of the opposing witnesses.
(Page 20)
56 This information is to be provided to me in advance of the case evaluation conference, which it should then be possible to conduct in a relatively short time, at (say) a 9:30 appointment.
57 If I am then satisfied that all relevant reports and statements have been exchanged, and that all issues have been joined appropriately, I expect to be able to estimate the length of trial. I would then refer the matter to the Listing Co-ordinator to fix the trial dates.
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