Time Estimates for Court Listings – Avoid ‘Gross Underestimation’: E v B (Interim Maintenance Inaccurate Time Estimate) [2021] EWFC B90

When parties list hearings with unsatisfactory time estimates, courts have not been shy to observe, in written judgments, the difficulties that this creates for the courts. For instance:

  • ‘… there is a general duty on counsel and solicitors to inform the court if it is obvious that the time estimate is incorrect. Failure to do so is likely to result in the case not being heard and this plainly could have substantial costs implications’ – Francis J, at paragraph 7 of O’Dwyer v O’Dwyer [2019] EWHC 1838 (Fam).
  • ‘… under-estimation of the time required to argue applications … is a significant current problem. In the hope that it may do something to start to turn the tide in that regard, I wish to emphasise that a half-day hearing estimate in this court is supposed to mean that a maximum of 2½ hours will be required for all substantive argument, an oral judgment and the determination (with argument as required) of consequential matters. As a realistic rule of thumb, therefore, parties should not ask for a half-day hearing unless they are confident, having considered the matter with care, that substantive argument will be completed within 1½ hours maximum’ – Baker J, at paragraph 16 of Kazakhstan Kagazy Plc & Ors v Zhunus & Ors [2020] EWHC 128 (Comm).

On 4 November 2021, Recorder Chandler cited O’Dwyer and Kazakhstan Kagazy in the family law case of E v B (Interim Maintenance Inaccurate Time Estimate) [2021] EWFC B90, which further emphasised the gravity of this issue plaguing the courts.

As Gordon Exall, the barrister, commented in his Civil Litigation Brief blog, this decision explores a topic of ‘general interest relating to all types of litigation’.[i]

Prior to the hearing, which comprised of multiple interim applications, the parties’ agreed position was that it could be heard within 2 to 2.5-hours. In reality, however, the hearing lasted 4-hours (from 14:00 to 18:00), with the Recorder eventually being forced to reserve judgment and adjourn on a residual matter.

He deemed that the time estimate had been ‘wildly optimistic, to the point of absurdity’.

This ‘gross underestimation’ had been caused by the witness statements being ‘too long and too densely detailed’, the bundle exceeding 480 pages, ‘unclear and/or unreasonable’ expectations in terms of judicial pre-reading (1.5-hours) and extensive oral submissions (3.5-hours).

In the Recorder’s judgment, a case bearing relation to these elements should have been listed for a 1-day hearing and it was no excuse to provide a ‘manifestly wrong’ estimation to satisfy the need for applications to be heard ‘at the earliest opportunity’.

He went on to make a wider remark that:

For too long, interim applications … have been crow-barred into inadequate time estimates, allowing the court insufficient time to consider the papers before the hearing, or sufficient time to properly review its judgment … Just as practitioners should not receive unreasonable demands from the judiciary, so judges should not be put in the sort of position this court faced in the present case: well-being is a two-way street. Realistic time estimates must be given’.

Should any litigant place a court in a similar position to that in E v B, he warned, in accordance with earlier case authorities, that they ought to be aware of the possibility of adjournment and costs sanctions’.

Full text judgment can be accessed here.

 

[i] Gordon Exall, ‘TIME ESTIMATES: “WILDLY OPTIMISTIC TO THE POINT OF ABSURDITY”: AN UNHAPPY JUDGE’ (5 November 2021 Civil Litigation Brief) <https://www.civillitigationbrief.com/2021/11/05/time-estimates-wildly-optimistic-to-the-point-of-absurdity-an-unhappy-judge/> accessed 5 November 2021.