From time to time, applications are made by a party to proceedings to expedite the hearing because of a feature about the case raises a need for urgency (for example, a dying plaintiff).
However, often when an application is made to fast track the proceedings, it can raise issues of prejudice for the respondent, by abridging the time required to properly prepare its case to meet the claim.
The Court is required to undertake a balancing exercise to ensure each party to the litigation is allowed the opportunity to put its case forward.
What is expedition?
- Expedition is where the normal course of proceedings are accelerated. Matters of urgency can include when a party is in declining health, the loss of an essential witness if the case is not fixed at an earlier date, matters of public importance, or if the applicant is suffering hardship through no fault of their own.
- With a grant of expedition, the hearing date is brought forward and matters such as the exchange of evidence and the usual procedural tasks become subject to an abridged and strict timetable.
Preparing for an expedition application
- Because of the matter of urgency involved, applications for expedition are made in circumstances where the applicant requires the matter to be dealt with quickly.
- The application will be in the form of a Notice of Motion with a supporting affidavit setting out the basis upon which the applicant seeks a grant of expedition, including why the case should take precedence over the other cases listed for hearing in the relevant Court.
- Practitioners must be in a position to provide an agreed timetable for the preparation of the matter for trial, with an accurate estimate of the timeframe within which the matter will be ready for trial, and an accurate estimate of the hearing time.
- Sometimes it is necessary to oppose an application, if it is considered that the expedition would jeopardise the respondent’s ability to meet the case made against it.
- A respondent must consider what needs to be done to fully prepare the matter for hearing if it was to run to a normal timetable. For example: requesting further and better particulars, filing defence(s), cross-claims, issuing subpoenas for production, obtaining expert evidence, replies to evidence served, mediation and any other interlocutory applications that could be required.
- If a decision is made to oppose the proposed order for expedition, the respondent must file an affidavit setting out the evidence relied upon in opposition. The affidavit needs to say that all attempts were made to comply with the applicant’s request for expedition and why there would be prejudice suffered if the hearing was to be brought forward. Things that should be included in the affidavit are:
- The dates of service of the originating pleading, defence(s), cross-claims and the application for expedition itself (if relevant)The dates of the evidence served to date and the state of readiness of the evidence of all parties.
- The nature and complexity of the matter.
- If relevant to the matter, the location of the parties involved.
- Potential subpoena recipients, any difficulties with issuing subpoenas for production and obtaining documents using the subpoenas in accordance with the abridged timetable.
- Any further expert evidence required. This includes the availability of experts in each relevant field (sometimes two or three experts in each field need to be approached), the briefing information required (including subpoenaed material), the estimated turnaround for each report and the ability of the witnesses to comply with the tight timetable. Enquiries need to be made with each expert and a report of these enquiries should be annexed to the affidavit, along with dates and specifics of the enquiries.
- An affidavit must be filed as soon as practicable before the hearing date listed in the Notice of Motion that seeks the to oppose the order.
- The Court will look at a number of factors in determining an application for expedition, including:
- the feature giving rise to the need for urgency and whether it warrants expedition;
- whether the parties have proceeded up to the date of the motion for expedition with due speed;
- if expedition is granted, are the parties willing to do all in their power to abridge the hearing time?
- The Court will also consider the interests of both parties, together with the interests of justice, in making its decision.
While the preparation of an expedited hearing can be a stressful time for both clients and practitioners, it is a necessary step when one party is presented with factors which may impact on the ability of that party to proceed to hearing in the usual fashion.