In the recent case of Peniuk and others v Barclays Bank plc, despite noting the importance of the evidence to the claimants, the High Court has refused a late application for specific disclosure in order to maintain the trial date.
The claimants made an application for specific disclosure shortly before the pre-trial review, which took place six weeks before the trial, arguing that without this evidence, they would be handicapped in cross examining the defendant’s expert. The judge noted that the fact that the claimants admitted that they would rather have the documents, even at the risk of losing the trial date, showed how important the documents were to them. However, if he ordered disclosure now, it would result in substantial additional costs in preparing a further round of expert evidence, at a time when the parties should have been concentrating on trial preparation. Ordering disclosure and maintaining the trial date were not really compatible and he was not persuaded that the application could not have been made any earlier. Therefore, he refused the application on the grounds that it was made too late.
The importance of maintaining the trial date has been a consistent theme in recent cases on relief from sanctions and time extensions. However, this case shows that the court will take this into consideration in all types of interim application, which should always be made at the earliest opportunity to have the greatest chance of success.
Chris Harper is a partner and head of the dispute resolution team in Exeter. He specialises in commercial litigation and is named as a leader in his field by independent guides to the legal profession Legal 500 and Chambers. To contact Chris please call 01392 210700 or email firstname.lastname@example.org.