Availability for Court / annual leave
Q. It is common in my practice that I have to provide dates of availability for Court listings. I plan my leave around 12-18 months in advance so that I can book trips etc but also leave adequate space available for Court listings. I am currently dealing with an instructing solicitor who is insisting that holidays / leave are not a reason to be unavailable for Court. They have quoted the case of Matthews v Tarmac
A: Mathews v Tarmac does not lay down any rule that holidays or leave are not a good excuse for unavailability. At best it indicates that sometimes the Court will not delay a hearing on account of the expert’s preferred dates or other commitments. The problem in that case was that the reasons for the two defence experts’ unavailability (which were perfectly good reasons) had not been communicated by the solicitors to counsel before the hearing at which listing was discussed, and thus counsel was unable to tell the judge what they were.
This is what Lord Woolf said:
“Courts cannot perform their duty of conducting cases justly if the preferences for hearing dates of doctors are always given priority over all other considerations. The right course for the parties to have adopted in this case was to attempt to reach agreement themselves as to the dates which could be met, to have consulted with the court, and with the court's cooperation to find a date within a reasonable time for the hearing. In this case the parties apparently from October 1998 could have taken that course, but they left the matter until April 1999 and, even when the court fixed a date as far ahead as 15 July of the same year, they say that that date is not practical.”
It was for that reason that the CA in that case upheld the judge’s decision to list the hearing on a date on which one expert had a pre-booked holiday.
You are entitled to say, “I am not available between these dates because I have a pre-booked holiday arranged x months in advance”. However, the situation requires flexibility and good/clear communication - and empathy - on everyone's part. It is important for you not to be too belligerent as this is likely to be counterproductive. So, politely insist when you are not available and the reasons for that unavailability.
You should provide to your instructing solicitor full details of all leave and holiday dates that are currently booked, covering the trial window period and also as far as possible the other periods the solicitor has identified. It is important to differentiate between leave (ie time booked off work) and actual holidays that have been booked. The court is likely to be more sympathetic to pre-booked holidays than to annual leave although as a general rule they would aim to accommodate both if this could be done without causing undue delay. As to providing dates outside the trial window, we see no harm in doing that as a precaution in case for some reason there is slippage. You should probably not book any other holidays until you know the trial date.
Provided with that information the instructing solicitor is then in a position to attempt to identify a suitable trial date/s with the solicitor for the other side, taking into account all availability information. If such a date or dates can be identified then the solicitors can ask the court to fix that date for trial, knowing that all the witnesses (and presumably their counsel of choice) are available.
If no agreement can be reached between the parties, then they (the instructing solicitors) will make an application to the court to fix the trial date and will have to provide detailed information about the witnesses' availability.
Additional note:
- the principle of “first come first served”
The court before setting dates will make enquiries through the solicitors regarding availability of all parties before setting a window for the case if you have pre-existing commitments they will be honoured. But once this process has been completed and all parties have effectively agreed to the trial window it becomes harder to vary commitments.
One of the potential pitfalls in this system is that your instructing solicitors omits you or others in the initial judge enquiries that can lead to solicitors trying to cover up their omission by putting pressure on expert witnesses etc.
Before you accept instruction, you should ask for sight of all relevant court instructions and keep up a dialogue with the solicitor regarding dates - this encourages them to include you in the consideration of any proposed dates.
- a constructive cooperation with the parties generally leads to acceptable compromises and accommodations. Although many Judges and council have preferred running orders they can often be adjusted or moved around to fit in with interested parties needs.
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