How long do you think the hearing will last?

It is vital that careful thought is given when providing an estimate for the length of a hearing to court. Parties to litigation have a duty to assist the court to comply with the overriding objective and part of the overriding objective is to ensure that an appropriate share of the court’s resources is allocated to a claim. An estimate which is far in excess or falls short of the time required to hear an application is likely to result in parties be criticised. Over-estimating can be as wasteful as under-estimating and any unrealistic estimate could result in application not being heard and costs consequences could follow.

Additionally, it is vital that parties keep the court aware of any developments which may affect the estimates. If there is any decrease (or increase) of the estimated time then the court should be immediately informed, allowing it to list other matters.

Applications ‘on paper’

Certain applications can be considered and disposed of by the court ‘on paper’, without a hearing. A common example is an application for an extension of time for service of a defence. However, ultimately the question of whether an application can be considered and disposed of ‘on paper’ is a decision for the Judge, and the parties may (although not often) receive a direction for an oral hearing.

Application to be listed for hearing

Principles

Contested and complicated applications should generally speaking be listed for hearing. Parties should consider the nature of the application, seek whether the application is going to be opposed and then decide whether to request oral hearing or not.

The pace at which documents/authorities can be taken and the time needed for oral argument on the issues raised will need to be factored in. For example, if the hearing would be before a Judge who is already familiar with the case. Time estimates should additionally include time for delivery of Judgment and any costs submissions thereafter.

Agreeing time estimates

Engagement with other sides is very much encouraged to provide an agreed time estimate and our experience is that the court will be appreciative of this. Where Listing Officers are faced with an application where parties’ time estimates are far apart, they may have to request direction from a Judge, which can delay the listing process.

Reading time

An applicant should ensure that their time estimate provides sufficient ‘reading-in’ time for the Judge. Reading-in time can considerably reduce time estimate for the hearing itself, as the Judge will be familiar with the issues of the application and the documents filed at the start of the hearing.

When deciding reading-in time, parties should assume that the Judge is not familiar with the case or application. Consequently, if an accurate reading in time is provided, this could reduce costs and allow for the application to be disposed of more efficiently.

A recent matter saw parties agree a time estimate of a half-day hearing (2½ hours), which allowed for both judgment and costs. The parties also provided the court with estimate of 1 hour for reading-in.

Adjusting the time estimate

Upon issue of the application, evidence in support will be filed and served, at which point a time estimate will need to be provided. While the time estimate should be as accurate as possible, it is often not until evidence in answer is received that it becomes apparent that more or less time is going to be required for the hearing and the court should be updated accordingly.

Example time estimates

The various court guides set out suggested or maximum time estimates for specific applications. Attention should be paid to the commentary in each court guide, as to when (if ever) the court may accept or act on time estimates in excess of these maxima.

The Commercial Court Guide

Source: The Commercial Court Guide (10^th Edition, 2017) – paragraph F10.3

Key takeaway

Overall, parties should assist the court by being aware that not only can time estimates can be ever-changing and being vigilant as to the need to update the court where appropriate.

This post was prepared by NRF London’s Court Manager, Nigel Fisher.