England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/11/2008

Mr Justice Mann:

Introduction

1. These are applications in co-actions brought by Mr Reid, a solicitor. He was until recently the sole equity partner in the firm of Reid Minty. He has now sold that business to McGrigors. The first action ("Capita 1") is an action against Capita Group plc as the sole defendant. The action centres on an agreement by which Mr Reid sold a legal costs-related business to Capita in exchange for a capital sum and further earn-out provision based on profits of the purchased business for the years 2003 and 2004. The business involved acting for defendants (primarily insurance companies) in negotiating down costs claims in respect of successful claims. Two of the people involved in running the business in the hands of Mr Reid, namely Mr Edwards and Mr McLuskie, went with the business. The essence of the action is that Capita were under an obligation to run the business properly (which is not disputed) and failed to do so. The profits were (as a result) less than they ought to have been and Mr Reid has a claim accordingly. The second action ("Capita 2") is an action brought by Mr Reid and associated claimants against Capita and four other defendants – three of them are former employees or partners of his firm and the fourth is a legal business (ProLegal) in which Capita is said to be interested. ProLegal is a legal business, specialising in recovering uninsured losses. It competes with Reid Minty. It is alleged Mr Edwards acted in breach of duty in setting up and participating in that business, and that the other two individual defendants acted in breach of their contracts of employment in planning to set it up and join it while they were still employed by Reid Minty. There are certain intellectual property claims as well. ProLegal and Capita are said to have induced those breaches of duty.
2. Subject to any orders that I make in the applications before me, Capita 1 is due for trial in the week beginning 19^th January 2009 with an estimate of some four weeks. Capita 2 was started much later, and has not got much beyond the close of pleadings. The applications before me in substance though not quite in form are the following. First, there is an application by Mr Reid to adjourn the trial of Capita 1 on the footing that he has had a recent accident, the effects of which, when combined with the medication he is having to take, mean that he cannot fairly be expected to prepare for the trial or to participate in it. The second application (which has its origins in a time before the accident to Mr Reid) is an application that Capita 1 be taken out of the list so that it can be tried with Capita 2. Third, there is an application that the 2 actions be tried together (concurrently).
3. The applications are resisted by the defendants in their respective actions. Capita takes the stance that the medical condition of Mr Reid does not justify an adjournment of the trial, and all the defendants in both actions take the stance that a trial of both claims together is neither necessary nor appropriate, with the result that Capita resists the application to vacate the trial date on that basis too.
4. Before deciding the applications I will have to set out how the issues have arisen and how they arrived before me.

The history of Capita 2

5. Capita 1 was commenced in June 2006. There were extensive pleadings indicating that there was going to be, amongst other things, a dispute as to the running of the costs business after the sale to Capita, and probably a comparison with the manner in which it was run before the sale. At that time Mr Reid knew that ProLegal had been set up (he had known for years) but no claim was brought in respect of it. ProLegal featured in the story of Capita 1 in that it was said that Mr Edwards's and Mr McLuskie's involvement in it meant that they did not devote enough time to the costs business.
6. Capita 1 was due for trial in November 2007. However, shortly before a pre-trial review in October 2007, Capita provided some additional disclosure. Mr Reid then sought to amend. The result of that was that an adjournment of the trial date was sought at the PTR and Mr Reid did not oppose it. As a result, Lightman J adjourned the trial. There is probably a dispute between the parties as to whose fault this was (whether Capita's for providing late disclosure necessitating the amendment, or Mr Reid's for amending late), but I need not (and indeed probably cannot) resolve that dispute. The fact is that there was an attempt to have a first trial, and that attempt failed. The trial was in due course fixed for January 2009.
7. In the meanwhile, it appears that Mr Reid's study of the disclosed documentation led him to consider that he had a further cause of action. On 10^th October 2007 his firm (acting for him) asked if certain documents could be used for the purposes of a claim or potential claim against Capita in relation to the setting up and operation of the ProLegal business. The claim was elaborated in full letter before action form in a letter of that date. It was said that the documents revealed a plan to form and operate ProLegal, and that participation in that plan on the part of Mr Edwards was a breach of duty said to be owed by Mr Edwards to Reid Minty flowing from an alleged consultancy agreement (operating in the period after he had ceased to be a partner and had gone to work in the costs business under Capita's ownership). Mr O'Shaughnessy and Mr Thompson were said to be in breach of their duties as employees in respect of solicitation away of customers. Capita and ProLegal are said to have induced Mr Edwards, Mr O'Shaughnessy and Mr Thompson to breach their duties. It is clear that this suggested claim was the foundation of the claim ultimately made in Capita 2.
8. On 20^th November 2007 Messrs Addleshaw Goddard, solicitors acting for Capita, consented to the use of the documents in question. It was asserted that any claim which might be brought along the lines of those referred to in Reid Minty's letter should be tried at the same time as Capita 1. It was asserted that any pursuit of those claims later on would be an abuse of process.
9. On 30^th November 2007 solicitors acting for the three individual defendants in Capita 2 asked Mr Reid and his solicitor (Mr Fenn) whether Mr Reid would be issuing proceedings against them. Mr Reid is said to have responded that he had not decided whom to join.
10. At some point in December 2007 the trial was refixed for the week beginning 19 January 2009.
11. By about 20^th February 2008 a form of proceedings relating to the matters in Capita 2 had apparently been settled in draft, according to the correspondence. There is no indication that there was any appreciation at that stage of the need for a joint trial. Indeed, there are indications that it had been decided by Mr Reid not to press for such a trial. In February some further disclosure was given by Capita, and, whether because of that or because of a further review of documents, Reid Minty wrote to Addleshaw Goddard on 10^th March asking for a general permission to use disclosed documents for the purposes of bringing additional claims:

"From ongoing and voluminous disclosure in this action, further documents have come to light which relate to the conduct of your client together with former employees of our client: Mr Edwards, Mr Thompson and Mr O'Shaughnessy, during the Earn Out period.

These documents will ultimately be utilised in bringing additional claims once this current litigation has been concluded …"

The reference to the time at which the further litigation will be commenced should be noted. It is consistent with previous conduct in demonstrating an apparent decision to wait and get Capita 1 out of the way first before bringing the second claim.

12. Addleshaw Goddard responded on the 17^th March requiring a more particularised and less generalised list before considering the request further. Their letter said:

"You are already aware of our client's position in respect of the additional claims to be pursued (see our letter of 20 November 2007). We repeat that these claims should be tried at the same time as the existing claims and that any attempt to pursue the claims after the trial of the present proceedings would be an abuse of process."

13. Reid Minty responded on 20^th March that they would try to provide further information. So far as the new proceedings were concerned, they added:

"Within our letter dated 10^th October 2007, we described bringing a possible claim against Capita Group PLC and ProLegal Ltd for inducing breach of contract and/or unlawful means conspiracy. Draft proceedings have been prepared, but are on hold pending the outcome of mediation.

"As a matter of courtesy, we also put you on notice of a further claim, albeit your client is not a proposed party at this time. Counsel is instructed to draft proceedings for breach of employment against Mr Derek Thompson and Mr Mark O'Shaughnessy. Counsel is also to consider whether ProLegal should be a party to this action, for example by way of inducement to breach, something upon which we can advise you in due course."

14. So the further claims were still under active consideration but were still not yet brought. In their response Addleshaw Goddard noted that draft proceedings had been prepared, and stated that they would expect to be provided with them,

"…particularly if Mr Reid is suggesting that any reliance should be placed upon them at the mediation."

15. They were not provided at that time, or for the purposes of the mediation, which took place on 2^nd May 2008. The mediation failed. On 27^th June a claim form was issued but not served. That action was and is Capita 2. The same day a letter before action was sent. According to Mr Fenn, the solicitor with the conduct of the cases on behalf of Mr Reid, instructions were given to counsel to settle Particulars of Claim. It is not clear how these differed from anything previously settled. When Addleshaw Goddard wrote refuting the new claim the claim form and Particulars of Claim were served on 31^st July. On 30^th July Reid Minty had responded to a complaint about delay made by Peters & Peters (acting for the non-Capita defendants in Capita 2). Reid Minty said that there:

"… has been no delay in this matter by our clients. It is only as the Capita Action has unfolded that your clients' conduct has become apparent, culminating in Capita's fifth supplemental list of documents dated 21^st February 2008. Unfortunately Capita has been far from diligent in complying with its duties on disclosure …. Now that we are in a position to do so, we have acted swiftly."

I do not consider that the adverb "swiftly" can be fairly applied in those circumstances. Even if it were necessary to see the February disclosure in order to finalise some sort of drafting (which it was almost certainly not), the proceedings could have been commenced then or shortly thereafter. Draft proceedings were already available for a claim against Capita (see above), but even those were not provided for the mediation.

16. By about this time it had apparently occurred to Mr Reid's team that it would be appropriate to seek to have the two actions tried together. On 1^st August Reid Minty wrote to the Capita 2 defendants inviting them to agree to an order that the two cases be heard together. The letter pointed out the January trial date and said that directions should have to be given to ensure that the two trials could indeed be heard together. Peters & Peters, for the first four defendants in Capita 2, completely rejected this course of action on 4^th August, having previously complained that they had not been given documentation to which they considered themselves entitled.
17. At this point the trial date for Capita 1 was just 5 months away. Capita 2 involved 3 individuals who had not been a party to the proceedings hitherto, and one company (ProLegal) which had not been a party either, whether or not it was Mr Edwards's company (which is the defendant's case) or a creature of Capita (which is Mr Reid's case). The parties, and in particular the new defendants, were ostensibly going to have to run very hard if there were to be any prospect of Capita 2 being ready for trial with Capita 1. Mr Reid would dispute any assertion that large amounts of work needed to be done, because it is his case that most of the relevant facts and material were in play anyway in Capita 1. However, even if one allows (for the purposes of considering timing in this paragraph of this judgment) that there is very significant overlap between the facts of the two cases, it is still the case that there were new parties, who had not been involved personally before, and three of who were individuals and not trading or commercial concerns. To expect them to be ready for a trial in 5 months from a more or less standing start might well be thought to be a tall order. One would therefore have expected any application to achieve that end to have been launched promptly and pursued efficiently and expeditiously. It was not.
18. An application was issued on 18^th August 2008 to have the actions tried together with a return date before the Chancery Division vacation judge on 4^th September. The time estimate of Mr Reid's team was an hour and a half. On 20^th August 2008 Peters & Peters requested the vacation of that date, on the grounds that the time estimate was too short and on the basis of the unavailability of their counsel. McGrigors (now on the record for Mr Reid in place of Reid Minty) agreed to that and also agreed an extension of the time for service of the Defence until 26^th September. That agreement was a somewhat odd one where urgency was becoming a crucial factor, but it was sought and it was agreed. Thereafter there were two attempts to fix a date for the hearing of the application, and negotiations to that end. Two fixing applications were made to the clerk of the lists on 3^rd September. They failed because agreement could not be achieved in relation to a date, at least in part because there was disagreement as to whether the date should be before or after close of pleadings, or at least before or after the filing of the defences in Capita 2. The solicitor dealing with these matters was also under the impression that there was a problem in getting a proximate date as a result of listing difficulties. There was also a professed difficulty in counsel being available for the defendants. Further attempts were made to fix with reference to counsel's diaries. I will not go into the detail of them. They failed. McGrigors then applied to a Chancery Master to fix a date for the hearing. That was inappropriate, as he ultimately held on 2^nd October, when he dismissed the application.
19. The position at that date was therefore that an application for the trials to be heard together ("the concurrency application") had been issued but had no date for hearing. It had been outstanding for a month and a half. It was something which had to be dealt with urgently, in the light of the opposition to it, and the whole month and a half was essentially wasted. While I have the impression that McGrigors might have been given bit of a runaround on this, the prime responsibility for this waste of time lies with Mr Reid's team. Having issued the application late, the only sensible course was to have a prompt hearing (and not as late as 4^th September) in order that directions could be obtained which would doubtless have generated an appropriately swift hearing. If it was sufficiently urgent then doubtless counsel's convenience would have had to take a secondary place. What happened was simply not sensible in the circumstances.
20. What happened next was also somewhat less than focussed. On 9^th October an application was issued before the applications judge, returnable on 16^th October, for the trial date to be adjourned. It was not accompanied by any application for the determination of the concurrency application, or the concurrency point. The underlying point was that the trial should be adjourned so that the concurrency point could be determined. By now there was also a medical point – Mr Reid had had an accident which, it was said, would mean that he was hindered from preparing for the trial on the January date, and which would also prevent his being able to participate properly in the trial. That was also relied on as requiring an adjournment of the trial. The first basis of the application (the need to try the concurrency point) was an odd one. Putting the medical point on one side, the only reason for having an adjournment would be to allow for concurrency of the two trials. If concurrency were not appropriate there would be no need to vacate. So that is the point that really needed deciding; but still there were no plans to get the concurrency application properly heard. The matter came before me in the applications court, and I gave directions for the new application and the slumbering concurrency application to be heard together as soon as possible. These were brought on in less than 14 days. Thus they arrive before me.

The medical point

21. It will be useful to consider this point first, because if medical reasons mean that the trial has to be adjourned anyway there is no need to consider the need for concurrency as it reflects on the trial date. Concurrency can be heard simply on its own merits, knowing (if it be the case) that there would be no need to adjourn to achieve it. The adjournment would have been achieved anyway.
22. On 10^th October 2008 Mr Reid was thrown from a horse-drawn scurry and suffered a serious broken ankle. It required surgery, and it is said that a combination of his resulting incapacity, his pain or discomfort and the effect of his pain-killing drugs has the effect that he cannot reasonably be expected to participate in the preparations for the trial, and in the trial itself. He has obtained a medical report which in terms says that, or almost that. Based on that and later medical evidence, it is submitted that the trial should be adjourned. Capita says that when properly construed and given effect to, the medical evidence does not justify that conclusion. It is necessary to consider that evidence with some care, bearing in mind that the doctors in question have not been cross-examined and that the court itself has no in-built medical expertise. All those who have provided evidence are practitioners of eminence whose views are to be accorded an appropriate degree of weight.
23. The evidence shows a developing story. The first report is from a consultant orthopaedic surgeon specialising in disorders of the foot and ankle, namely Mr Mark S Davies. On 11^th October 2008 (the day after the accident) he reported to Dr David Myers (Mr Reid's GP) that he had seen Mr Reid and had undertaken surgery. He warned that:

"The recovery from this injury will be slow (i.e. 6 – 12 months before he knows how good it is going to be)."

On 14^th October he reported again. He said:

"This is a severe injury and the treatment is operative, followed by an extended period of plaster immobilisation, non-weight bearing, and then extensive physiotherapy. For the first two weeks, Mr Reid needs to remain house-bound with his leg elevated at every opportunity. He will then be in plaster for a further four weeks, when a further x-ray will be taken. If all is well at this point, he will then go into an Aircast boot and commence physiotherapy, which will continue for several months.

This injury will be very painful and Mr Reid has been prescribed pain-killers which may make him tired and affect his ability to concentrate and work effectively. He will continue to take these pain-killers for as long as necessary, possibly up to six weeks following surgery.

The aim of this surgery is to prevent him developing an osteo-arthritic ankle and the outcome from the treatment will not be known for at least 12 months. The recovery time for such an injury is somewhere between 6 – 12 months. As there is a not inconsiderable risk of deep vein thrombosis, he requires self-administered injections of low molecular weight Heparin on a daily basis until he is more mobile, and this is likely to be at least six weeks."

Thus the doctor was predicting "possibly up to six weeks" of pain killers. This would bring the pain killer regime to 10^th November.

24. On the same date, 14^th October, Mr Davis provided a further short report addressed "To whom it may concern" in which he said:

"Surgery was performed on Saturday 11^th October 2008 and I have advised him to refrain from work for three months from this date."

25. On 17^th October 2008 a Dr Justin Peter, who works in the same practice as Mr Reid's GP but is not his normal GP, dictated a report (typed on 20^th October) making the following points:

i) Mr Reid was complaining of significant pain and difficulty in sleeping. He was also shocked. Lack of sleep meant he was tired and short-tempered.

ii) He could not carry out preparatory work for the trial in January 2009 because of his "significant disabilities", lack of concentration, loss of sleep, an inability to focus and an inability to concentrate.

iii) In due course, he would be involved "on a daily basis in lengthy periods of physiotherapy". Physiotherapy meant that a part of every day would be lost in getting to and from the clinic.

iv) He would need to take regular painkillers. The painkillers would be ibuprofen, panadol, dihydrocodeine and tramadol. In addition he would take tamazepam as a sleeping tablet.

v) He records that the combined effect of those drugs, the pain and the loss of sleep would have a "major impact on his ability to concentrate and process information apart from the fact that his time is going to be taken up by daily physiotherapy".

vi) In summary, it was his opinion that it would not be possible to expect Mr Reid to be able to prepare for a trial commencing in January and to be able to attend the duration of that trial, and that therefore for the medical reasons set out in his report the trial date should be adjourned until his treatment is completed "for at least six months".

26. On 27^th October 2008 Mr Davies provided another "To whom it may concern" report, stating:

"This is a serious injury and I have advised him to remain off work for three months from the date of the injury."

In addition to the evidence of those doctors who had actually seen Mr Reid, Mr Reid's solicitors also served a witness statement from a Dr Graham Mould, a consultant pharmacologist. It is dated 27^th October 2008. He gave his opinion of the physical effects of the medication which he was told Mr Reid was subject to. He considered the pain relief drugs (tramadol, ibuprofen, diclofenac, paracetamol and dihydrocodeine) and tamazepam. He also considered the effects of certain heart medication that Mr Reid was already taking, but that does not raise any issues for the purposes of this application and I will not consider it further. So far as concerns the issues which arise before me, he expressed the following views:

"i) The side effects of tramadol include confusion, dizziness, light-headedness and fainting when getting up from a lying position. It is capable of giving rise to psychiatric reactions and may cause some nausea and vomiting.

ii) Dihydrocodeine has adverse effects similar to those of morphine, but less marked – gastro-intestinal effects, nausea, dizziness, confusion and drowsiness. However these side effects are usually mild.

iii) Temazepam. As one of its major side effects this has drowsiness which may persist until the next day and as a result is likely to cause difficulty in concentrating on and performing skilled tasks. Its many side effects include gastro-intestinal disturbances including nausea and vomiting, dry mouth, aggression, irritability, confusion, depressed mood, drowsiness, dizziness, light-headedness and unco-ordination. Amnesia is also a major side effect."

27. He went on to provide an answer to this question: Is the medication likely to have an impact upon Mr Reid's concentration, memory or other mental faculty and what are the likely side effects? He expressed the following views:

"i) Mr Reid is taking tramadol and dihydrocodeine, both of which are known to cause dizziness and drowsiness. His concentration could well be impaired. This would be exacerbated by the temazepam which is also being taken.

ii) Since Mr Reid had not taken temazepam before, its hypnotic effect and subsequent 'hangover' effect would be more pronounced in the initial stages. The lapses of concentration of which Mr Reid was complaining could be due to the effect of the temazepam. It could also have effect on short-term memory.

iii) Diclofenac, which is at its maximum tolerated dose, might have an effect on concentration, and a combination of that drug, together with tramadol and dihydrocodeine could cause a certain amount of dizziness and confusion. Therefore, there is no doubt that the medical treatment that has been prescribed is likely to have a significant effect in lowering Mr Reid's ability to concentrate and to maintain it.

iv) I would conclude that [the reported difficulty Mr Reid had in concentrating and having difficulty in remembering previous discussions] are a direct result of the medication that he is taking and as a result would impair his ability to instruct his solicitors adequately."

28. That completed the first round of medical evidence. Capita did not accept that body of evidence as being an accurate reflection, or a proper reflection, of the situation, and obtained its own. It obtained a report from a consultant orthopaedic surgeon and from a consultant pharmacologist. Neither of those consultants actually saw Mr Reid. They worked from the documentary reports that I have referred to, together with certain other reports to which I have not found it necessary to refer.
29. Dr Kevin Hardinge is a consultant orthopaedic surgeon. He reviewed the medical evidence to date (or some of it) and expressed the following views:

(i) From 6 weeks after the injury crutches would be used in order to relieve the weight bearing on the ankle and to start the taking of weight.

(ii) Full weight-bearing would be possible at the end of 3 months from the injury.

(iii) From the time when weight-bearing starts (about 22^nd November) Mr Reid could be expected to be less reliant on pain-relieving tablets.

(iv) He would be likely to be off all heavy drugs by 6 weeks from the date of the injury.

(v) He would be likely to get more comfortable bearing his weight over time.

(vi) He would expect him to be off the drugs except for Diclofenac after 3 weeks. The Diclofenac would be needed for 6 weeks. It would not affect his ability to concentrate. However, there is a degree of equivocation here. In another part of his report he says it would be possible for Mr Reid to remain on more painkillers during the day and Temazepam at night for 6 weeks.

(vii) Mr Reid will require "walking re-education" on a daily basis in the first week of December and then on an alternate daily basis for the second week. Thereafter, in December he would require once or twice weekly physiotherapy for up to an hour, which could take place at his home.

(viii) If proper accommodation can be provided for Mr Reid in terms of wheelchairs and other necessary comfort aids, then on the balance of probabilities Mr Reid will have "largely recovered" from the serious effects of his injury "and will be able to withstand the rigours of a Court attendance both physically and mentally without general disturbance to his general wellbeing'.

30. The principal significance of this report is his views as to the likely duration of the drugs regime, and the clarification of the time involved in physiotherapy. These views are expressed without the benefit of an examination of the patient, but I accept them as the views of a responsible professional as to the likely effects of this sort of injury on a typical patient. There is no indication anywhere that Mr Reid is atypical.
31. Pharmacology evidence was provided by Dr Richard Pearson on 30^th October. He referred to the effects of Temazepam. He points out that it should not be used for more than 3 weeks because of a danger of dependence, tolerance, rebound insomnia and acute withdrawal symptoms. He would therefore not expect him to be on that drug for the 6 weeks suggested by Dr Peters.
32. Dr Myers provided a further report on 30^th October after seeing his patient at 9.30 pm. He expressed his surprise at Mr Hardinge expressing any view at all without reviewing the operation notes, while at the same time demonstrating his own misunderstanding about the procedures that his patient had undergone (he thought that he had not undergone internal fixation when in fact he had). He observed that his patient would be under the sedative effects of his drugs, which affected his mental ability, until the next surgical review on 24^th November. It was, in his view, highly likely that Mr Reid would need medication after that date, "and since management lines post November 24^th have not been drawn it cannot be stated the extent to which this impairment due to drugs will continue".
33. The application before me started on Friday 31^st October. Mr Trace QC, who represented Mr Reid, opened the matter, and had finished his opening submissions before the end of the day. Mr Mark Howard QC then advanced his case for Capita, and he finished just before close of business. Mr Ian Croxford QC then started his submissions for the other four defendants in Capita 2 for a few minutes before the end of play. Thus we were well into submissions by the end of that day.
34. That, however, did not prevent further evidence being lodged. Over the weekend Mr Reid's team prepared two further pieces of evidence. The first was a further witness statement from Mr Fenn ("Fenn 15"), providing further amplification of the history of the matter. I shall have to refer to some of that in due course. The second was further material from Dr Myers in the form of a witness statement. This contained the following material:

i) "From my recent attendances on Mr Reid he is displaying lack of concentration, extensive pain, general discomfort, sleep deprivation, dizziness and deep frustration at his predicament."

ii) He confirms that Dr Peter's report represents his own view.

iii) It was imperative that Mr Reid "rests in accord with his surgeon's advice".

iv) It was in his view likely that Mr Reid would continue to take Tramadol, Temazepam, Ibuprofen, Paracetamol and Dihydrocodeine "for a considerable period into the future". Other than that it was not possible to predict what the future drug regime would be.

v) As to the physiotherapy regime: "I anticipate that Mr Reid will start physiotherapy as and when but hopefully early December and that this will take place daily and for a period of at least 3 months at a clinic for about 2-3 hours per day. One should appreciate that physiotherapy is an exhausting procedure for those who have remained immobile and time should be allowed for recuperation from the sessions. Mr Hardinge's views … do not represent the regime which I have recommended to Mr Reid." It should be noted that these are not expressed to be Mr Davies's views on physiotherapy.

vi) "The advice I have given to Mr Reid, which is also Mr Davies's advice (and I have in fact spoken with Mr Davies about this on Friday 31^st October)… is that he should refrain from all work until at the very earliest January 2009. This extends to the preparation for Mr Reid's trial in January, which I believe would involve considerable exertions by Mr Reid which he is unfit to undertake." He did not agree with Mr Hardinge's view about Mr Reid's ability to attend court.

vii) He ends by commenting on Mr Pearson's report. "I anticipate that Mr Reid will be taking temazepam for approximately one more week when he will be prescribed alternatively for his current insomnia. One appreciates that sedative effects are unavoidable with hypnotics and the effects noted by Dr Mould will continue with the replacement for temazepam." This is a little at odds with his previous statement that the complete drugs regime would continue for 6 weeks; it will apparently shortly be changing, albeit with a substitution of one hypnotic for another. He does not, however, state what the replacement will be, and merely asserts, partly by implication, that its effects will be the same.

35. The last minute evidence did not rest there. The above was the state of the evidence during the second day of the hearing (3^rd November) at the end of which only a short part of Mr Trace's reply remained. However, on the morning of 4^th November Capita submitted a further report, this time from a chartered physiotherapist, namely Mr Christian Worsfold. He commented in particular on Dr Myers' expectation that Mr Reid would have to undergo two to three hours per day of physiotherapy for at least three months. He said:

"In my experience, treatment for such an injury for a longer duration than an hour per day at maximum would be highly exceptional and unusual. My usual treatment length for such an injury would be three 30 minute sessions per week. I would expect an orthopaedic surgeon to be concerned by any amount of treatment in excess of this.

I have never heard of a physiotherapist offering the amount of treatment suggested by Dr Myers. I would only expect it to be offered to the most elite of athletes, if at all.

In my opinion, given that the injury occurred on 10^th October 2008, I would expect the following physiotherapy regime to be reasonable and appropriate for Mr Reid:

One hour a day maximum, immediately following removal of the plaster (about six weeks after the accident;

Reduced to two or three times a week after the first four weeks;

By January 2009 it will be about once a week for 30 minutes.

Even in the most exceptional circumstances, by January 2009 I cannot envisage that Mr Reid would need to be seen for more than two 30 minutes sessions a week. These sessions could easily take place in Mr Reid's home."

36. It is somewhat unusual for this sort of medical report ping pong to take place at all, let alone during the course of the hearing of the application to which it relates.^[1] It arose in this case partly because of the urgency with which this application had to be dealt with. Had the application been allowed to develop with less pressure on the evidential timetable, then these issues might have been dealt with in a more measured way, albeit, I suspect, with the same end evidential result. It is because of that that I allowed the evidence to be admitted, and indeed there was no opposition from any party to the other's late introduction of this evidence.
37. On the basis of this evidence I am invited by Mr Trace to find that Mr Reid cannot properly or reasonably be expected to be required, or indeed to be able, to prepare for trial, or to attend the trial itself. He is in too much discomfort, and too affected by his medication, to be able to do the former, and his physical state, and his physiotherapy, will prevent his doing the latter. In addition to this evidence, Mr Trace relied on some contemporaneous evidence from Mr Fenn that Mr Reid was not really in a position to be able to give instructions for this application, let alone anything more substantial. Mr Trace pointed out that Mr Reid had been advised not to work for the next two months or so, and he should not, and could not, be expected to prepare for the trial.
38. One has an immediate sympathy for Mr Reid. His accident was obviously a nasty and painful one, and I accept that in its immediate aftermath he would not have been fit to undertake any activity related to the trial. However, what is important is the future. Capita have a legitimate interest in preserving the trial date if it can properly be done in fairness to all parties, and they assert that interest. It is said that they wish to have some finality, and this is a second trial date. If there were an adjournment without an order for expedition then it is to be anticipated that it might be as much as another year, and certainly many months, before the trial can be reinstated. In the light of that the medical evidence must be carefully evaluated. The question of an adjournment must be viewed in the light of the overriding objective.
39. There are two particular matters that I can get out of the way at this stage. First, Mr Howard submitted that Mr Reid's attendance at the whole of the trial was not necessary, so that if he had to be absent for some of the time to attend physiotherapy then that was not necessarily unfair. Furthermore, even if the regime required the sort of daily absence that Dr Myers said he would recommend then that could be accommodated by the court sitting later or early, or having short days. I do not accept that. Mr Reid's professed ambition to be able to attend the whole of the trial, and to have a normal one in terms of timing, is a legitimate one. He is closely and personally involved in the litigation, both financially and as a central witness.
40. Second, I do not regard the doctors' understandable advice that Mr Reid should refrain from work until January as necessarily covering trial preparation activities. Mr Reid's work involves being a solicitor, deputy costs judge, farmer, horse trainer and property developer. Those are likely to require his full time personal and physical engagement at various places. It is understandable that the doctors would advise against work in that sense. Trial preparation is, however, different. It can be done largely at one location in a case like this, and does not involve the same level of physical activity as Mr Reid's "work". His involvement in trial preparation might be more than many litigants, since he can, in my view, contribute significantly to the exercise of preparing cross-examination, and I am sure he will wish to consider the bundles (said to be likely to number 50). However, that sort of activity is very different from his work activities. I do not know what sort of "considerable exertion" Dr Myers thought would be involved, but I do not think that that is a fair description of those activities. It is an essentially sedentary activity, albeit involving concentration and mental acuity. It is also right to bear in mind that it is likely increasingly to take place during the period when Mr Reid's mobility will increase and when his drug regime will be reducing in severity.
41. With those points out of the way I turn to consider the effect of the evidence as to the likely extent of Mr Reid's disabilities. In doing so I am aware that one is looking forward into an area in which matters are not certain. The views of all the doctors are relevant. I do not dismiss the views of the doctors who have not seen or treated Mr Reid. They are able to give admissible evidence as to the likely course of events, the likely effects of drugs and the likely drugs regimes.
42. The areas of evidence which need to be focused on are twofold. First there is the period attributable to preparation for the trial (assuming for these purposes that the trial takes place in January). In relation to this period, the question is whether Mr Reid's injury and medication regime make it impossible or inappropriately difficult for him to prepare himself and his team for a trial in the week beginning 19^th January 2009. The second period is the trial itself. At this point, the medication point falls out of the picture because nobody has suggested that it is likely that the drugs he will be taking will impair his faculties at that stage. The question at that point becomes whether the disability resulting from the injury will make it too difficult for Mr Reid to participate in a trial, and whether there is or will be a physiotherapy regime which will make it impracticable for him to attend the trial for the period or periods for which he would need or expect to be able to attend it.
43. I turn therefore to the first period. As I have identified, two elements operate during this period. The first is the physical disability. I do not see why Mr Reid cannot prepare for the trial, and assist in preparation, while subject to his physical disability. He does not need to be mobile in order to do that, whether the exercise is contemplating and seeking to improve his case, assisting counsel with cross-examination (whether on the technical side of running the costs business or not, which I accept he might have something valuable to contribute to), reading bundles, re-familiarising himself with his witness statement, or any other activities which one might imagine he would want to do. He is not, of course, as mobile as he would normally be, but these activities do not necessarily require a high degree of mobility. Furthermore, it is to be anticipated that this activity will be likely to be taking place closer to the trial rather than in the immediate future, when trial bundles will be available. His discomfort is likely to be less at that point. All in all, I do not consider that a case has been made out for saying that Mr Reid cannot fairly be expected to get ready for the trial in physical terms.
44. Next, there is his drug regime. It is said that the drugs that he has to take for pain relief and for sleeping mean that he will not be mentally sharp enough to contribute. He will be coming off the heavy duty hypnotics shortly. Dr Myers says the temazepam (which seems to me to have the principal adverse effect) may be replaced shortly, but does not indicate what that the likely replacement would be. That is a little strange to my eyes – he must have some idea of what he would propose, but he does not indicate what it is. In those circumstances I am not prepared to make a finding that the replacement will affect Mr Reid so as to make it unfair to expect him to focus on trial preparation. Looking forward from now, the overall picture seems to me that Mr Reid will become less dependent on his drug regime, and the effect on his ability to focus and concentrate is likely to become less as time goes on and the hearing approaches. His trial preparation activities will not require his attention all day every day and other work will not be conflicting with it (on the assumption that Mr Reid follows his doctors' advice about that). Even allowing for some of the evidential conflict between the doctors that I cannot resolve at this stage, the overall picture is not one which, in my view, demonstrates that Mr Reid will be unable to devote sufficient attention, at the right time, in order to be able to do what he needs to do for this trial.
45. Turning next to the trial period itself, the two relevant elements are Mr Reid's physical participation at the trial and whether or not he would have to take time out every day for several hours in order to have physiotherapy. As to the latter, I consider that if it were the case that he would have to have two to three hours of physiotherapy per day during the trial period, as a medical necessity, that would make his attendance at the trial in practical terms impossible and it would be necessary to adjourn the trial. However, I do not think that the evidence establishes sufficiently clearly that that regime would be necessary. The suggestion of that level of physiotherapy comes from Dr Myers' last report, in which it is expressed to be his recommendation. His "recommendation" as a GP, unsupported by the consultant, is of less weight than the views of Mr Hardinge as consultant and the specialist physiotherapist. I consider that the need for physiotherapy has been overstated and that the likely level of activity on this front is more accurately summarised in the evidence from Capita's witnesses. Physiotherapy will therefore not materially interfere with the trial.
46. Then there is the question of how Mr Reid's disability will affect his physical ability to attend court and do what is necessary in court. A certain amount of discomfort for Mr Reid can be anticipated; and obviously life will be more difficult for him than if he did not have his foot in plaster. However, again, I do not consider that this level of disability and discomfort is sufficient to enable me to make a finding that it is of such of degree as to make it unfair for him to endure it during a trial of what is, after all, his own action. If he has to be in a wheelchair, then facilities can be provided. I am not satisfied that, by mid-January 2009, the undoubted awkwardness that will arise goes beyond that, namely awkwardness. Accordingly, those factors do not make it appropriate to adjourn the trial either.
47. I appreciate that what one is having to do at this stage is look forward on the basis of medical evidence which is to some extent disputed and in respect of which predictions may turn out to be wrong. Each side has suggested its own prognosis for Mr Reid, one of them without actually examining him. It may be that events will turn out differently from those which one side or the other (and in particular the defendant's medical expert) anticipate. Thus, for example, I suppose it might turn out to be possible that Mr Reid will have to undergo processes (whether by physiotherapy or otherwise) which, in the event, make it difficult for him to attend the trial. I do not think it is likely, but I acknowledge that it is possible. Were that to be the case, then it may be that a further application to adjourn the trial will be necessary. It would, of course, be unfortunate if such an application had to be made so close to the trial, but it cannot be ruled out. I acknowledge that possibility. If it has to be made, then it has to be made. However, on the basis of the evidence that I have seen, I cannot and do not determine that it would be unfair for Mr Reid to be expected to have his trial starting in the week beginning 19^th January 2009.
48. Accordingly, I decline to adjourn the trial on medical grounds.

Concurrency and the January trial

49. Mr Reid's case, in addition to his case based on medical grounds, is that it is right that Capita 1 and Capita 2 should be heard together, and since Capita 2 cannot now be ready to be heard in January then the trial of Capita 1 should be adjourned so that it can catch up. Both sets of defendants say that it is not necessary to have them tried together, and even if there was a case for doing so Mr Reid should not now be allowed to have the joint trials because of his conduct of the two matters hitherto. I will first have to consider the case for concurrent trials (I use that expression to describe the various possible ways in which the two trials can be melded, whether by way of simultaneous trials, one following the other, or various combinations of those events).

Are concurrent trials necessary or appropriate?

50. A determination that the two actions should be heard together, at least in the present context, requires, first, that there be demonstrated a sufficient overlap of issues or areas of dispute so as to make it right, bearing in mind the overriding objective, to have concurrent trials. Mr Trace's case was that that was demonstrated. Mr Howard said it was not demonstrated, or not demonstrated sufficiently to justify vacating the January date at this late stage. Mr Croxford said it was not demonstrated at all; his case was that even if there were an adjournment of the trial, concurrent trials should still not take place because the facts did not justify it and there would be prejudice to his clients if it happened. He maintained that concurrent trials would operate unfairly to the detriment of his clients, who are not parties to Capita 1 but who would, by hearing them together, have to sit through (and pay for) a large part of a trial that did not concern them.
51. It is as well to remind oneself of what the two actions are really about. Capita 1 is all about a breach of the sale agreement – whether the costs business was conducted properly after the sale. That may involve some questions about the meaning of the sale agreement, and it may well involve a comparison with the way in which the costs business was conducted prior to the sale. The formation and operation of ProLegal has a part to play in the formation of that in that it will be said that Mr Edwards devoted too much of his time to that activity and not enough to the conduct of the costs business. But the central inquiry turns on what was and was not done to run the costs business and whether it was enough. Working on, and setting up, ProLegal is not, per se, a breach of the agreement. It is merely an explanation of conduct. The ownership of ProLegal appears, on the pleadings, to be an issue in Capita 1, but it is not, in my view, a relevant issue, at least for present purposes. It does not go to the central question of what was done in the costs business and whether it was enough.
52. Capita 2 is about something different. It is about the duties that Mr Edwards and the other individuals are alleged to have owed Mr Reid's firm, and whether they were in breach of them in taking customers and setting up and working for ProLegal. One important dispute centres around whether Mr Edwards entered into a consultancy agreement with Mr Reid, and agreed to come back to the partnership after 2 years on the costs business. Whether he acted wrongfully turns in large part on the existence or non-existence of that agreement and, I suppose, its terms. At least part of the business of ProLegal is said to compete with the business of Mr Reid's firm. Other aspects of the claim are the misuse of confidential information, an alleged infringement of database right and other related intellectual property claims. The conduct of the costs business is background in that action. It provided the occasion for Mr Edwards leaving Mr Reid's business, and being put in Capita's way, but its conduct is not the real subject matter of Capita 2. It is not alleged that ProLegal's business competed with the costs business in the sense that it was conducting the same business. It is merely said that there is a potential conflict between the two in that the insurers who will be clients of ProLegal will be on the "other side" in relation to the costs business. The claims against ProLegal and Capita are parasitic on the claims against the individuals – they are claims that the breaches of duty were assisted in or induced by those two companies.
53. With that background it is necessary to turn to the alleged areas and levels of overlap which are said by Mr Reid to make a joint or concurrent trial appropriate, if not necessary. Mr Trace did not primarily put his case on a detailed analysis of the pleaded issues in each case to show the similarity between the actions. He put it on a more generalised basis, though (in response to the approach of the defendants) he did seek to supplement his case by an analysis of pleadings.
54. The first major area of overlap was said to be the sale agreement. It was the "starting point" of both actions. What overlapped were the circumstances of the execution of the sale agreement, the service agreement or agreements entered into by Mr Edwards and Mr McLuskie governing the period after the sale, and the alleged consultancy agreement entered into between Mr Reid and Mr Edwards. In my view this analysis does not describe issues. It describes some background, and to some extent the areas in which disputes in Capita 1 arise. The sale agreement is in one sense a key area. There is no doubt it was entered into, but what is the prime subject of debate in Capita 1 is whether it was broken. That might involve questions of construction, but it does not involve an investigation of the "circumstances" in which it was entered into. There is, in any event, no material or major dispute about that, as far as I can tell. There is a dispute about how the costs business was conducted in the hands of Mr Reid (because comparisons are drawn with how it was conducted in the hands of Capita), but that is not the same as the circumstances of the execution of agreement. Furthermore, that issue, as an issue does not arise in Capita 2. Disputes about that would arise, at most, as credibility issues in Capita 2.
55. The consultancy agreement is not technically a central issue in Capita 1. As a point it is irrelevant to the main issues. However, Mr Trace sought to elevate it to that level by saying that it was a major credibility point in relation to Mr Edwards. He would inevitably be cross-examined on it with a view to establishing that it existed, and if he is disbelieved about that then the judge would be invited to disbelieve him about the central disputes of fact. That would make the consultancy agreement a central issue in Capita 1 as well as Capita 2. In my view the correct analysis is that it is a factual point that will arise in the case not least because Mr Trace will raise it, but it is just one of doubtless many credibility points. It shows the connection between the background of the two cases, but no more. It is not inevitable that the judge in Capita 1 would decide the point. It is not, in my view a material area of overlap in deciding whether the two cases should be heard together.
56. The other areas of alleged overlap are as follows. I will describe them by using the words used in Mr Trace's skeleton argument.
57. "The ongoing relationship between Reid Minty and Mr Reid and Mr Edwards after November 2002." This is certainly an issue in Capita 2 – it is related to, or is an aspect of, the issue relating to the existence, or non-existence, of the consultancy agreement. It is said to be the subject of extensive evidence in Capita 1. I have read the passages in the witness statements which Mr Trace points to in this context. They do not make good his description of them. Mr Reid's evidence is in the nature of a few paragraphs at the very end of a long witness statement which look like "wrapping up" paragraphs, in which he merely deals with his relationship in general terms. The other passages, in other witness statements, are similarly a very small part of the overall evidence dealing with how they got on personally in general terms, and in one case (Mr McLuskie's witness statement) consisting largely of extracts from correspondence. This is not a material overlap.
58. "Mr Edwards and Mr McLuskie's role in Reid Minty/Auditing prior to the execution of the SPA [ie the sale agreement]". This is certainly a live issue, and a significant one, in Capita 1. It is, however, not an issue in Capita 2. Capita 2 is all about what the alleged offenders did after those activities ceased. I do not consider this to be an area of relevant overlap of relevant issues.
59. "The development and working of the ULR department." "ULR" stands for uninsured loss recovery – it was part of the Reid Minty business and became part of ProLegal's business. The loss of, or damage to, this business is part of the claim in Capita 2. To that extent the nature and extent of the relevant department in Reid Minty is a significant aspect of the Capita 2 claim. In Capita 1 there is apparently an issue as to how much time Mr Edwards and Mr McLuskie devoted to the ULR business (as opposed to the costs business) in Reid Minty. In particular, Capita denies that Mr Edwards spent almost his entire time working on the costs business (see paragraph 8 of its Amended Defence). There is therefore a sort of point of evidential contact between the two cases in this area. However, it does not seem to me to be a point of issue overlap, or even of a lot of evidential overlap. One would not expect a quantification of the amount of time spend by Mr Edwards and Mr McLuskie to be part of the Capita 2 claim. I cannot see that that point matters much in that context. What is of significance in that case, if anything, is the scope, extent and size of the business, before and after the alleged breaches of duty. That is different from a detailed quantification of what Mr Edwards and Mr McLuskie did in it personally.
60. "Mr O'Shaughnessy's/Mr Thompson's role in Reid Minty." This point is relevant to Capita 2. Mr Trace says that it is "extensively canvassed" in the witness statements served by both sides in Capita 1. I think that that is a bit of an overstatement, but it is certainly the case that it is referred to in witness statements of the claimant, and is also dealt with to some extent in Mr O'Shaughnessy's (for the defendant Capita). Why that should be the case is not particularly clear, unless it is for background. It does not seem to be relevant to the central issues in Capita 1.
61. "The circumstances of Mr O'Shaughnessy and Mr Thompson's resignation from Reid Minty." This is said to be a key issue in Capita 2. Both men are said to have given false explanations as to why they were resigning. I can see that this will be a significant part of the issues in that trial. It is said that it was part of a plan to move and establish a new legal services business for Capita, and any false reasons will reflect on the propriety of that conduct. I consider that the reasons given will form an integral part of the material into which inquiry will be made at the trial of Capita 2. Mr Trace again says that the point is "the subject of extensive evidence" in the Capita 1 witness statements. That is a serious overstatement of the nature of the evidence. It is referred to shortly in a small number of them, but basically as part of an overall narrative which is going somewhere else. The mere reference to it in evidence does not demonstrate any significant overlap of issues, or indeed avenues of evidential inquiry. I do not think that this will arise as a serious issue in Capita 1, though it may be a credibility point. It does not demonstrate significant overlap.
62. "The circumstances of the incorporation, development and operation of ProLegal." These are said to be relevant to Capita 1 because it was the decision to "institute" ProLegal which diverted a substantial portion of Mr Edwards' and Mr McLuskie's time from the running of the Costs Business. In Capita 2 the actual incorporation and running of the business is an essential part of the wrong alleged. In my view, while ProLegal has a relevance to both sets of proceedings, it is different in each, and in particular the focus is different. The real question in Capita 1 is how much time they were devoting to the costs business in the hands of Capita. Their involvement in ProLegal is (if anything) merely the reason for any shortcomings in this respect. I do not see why an investigation of why, when and how ProLegal was incorporated is necessary to that inquiry. Once incorporated, the question is really how much time the two men were devoting to each, if indeed there is a significant dispute about that, and whether enough was devoted to the costs business. The focus in Capita 2 is different. The circumstances of the incorporation may be more relevant, as will their activities in it. It is tempting to regard this as really part of the same overall inquiry, and in one sense it could be. However, if the question is whether the two necessarily overlap to make it necessary or desirable to try them together then the answer in my view is that is not. In other circumstances it might be a good idea to do so, and an equally good one not to, but it is not a powerful factor leading to a joining of two sets of proceedings which have hitherto been separate.
63. "The involvement of Mr Edwards in ProLegal." This is really covered by what has gone before. So far as it is in issue at all, it arises in Capita 1. It is no more than the occasion of, or cause for, any failure to devote sufficient time to the costs business in Capita 1. If he did not devote enough time to it, it does not matter if that is because he was working for ProLegal, playing golf, taking long holidays, or any other reason. The question is what time was necessary, and was he devoting it. There is no significant relevant overlap here.
64. "The ownership of ProLegal." This is said to be a pleaded subject of dispute in both actions. I accept that is part of the essential background to Capita 2. I fail to see how it is relevant in Capita 1, save perhaps when there is cross-examination as to credibility.
65. "The relationship between Reid Minty's ULR Department and its clients." This is going to be relevant in Capita 2; I do not understand that that is disputed. However, even if referred to in some witness statements in Capita 1, I do not understand how it is really going to be relevant to that action.
66. "The turnover/profits made by ProLegal." There is a claim against Capita to an account of these profits in Capita 1. It is probably more accurately expressed as a measure of the damages in Capita 1. In Capita 2 there is a claim to an account of profits directly against ProLegal. For present purposes there is no overlap because damages are not to be tried at the Capita 1 trial. That Capita 1 trial is, by virtue of a previous order, confined to issues of liability and causation, but not damages. Accordingly there is no material overlap here, at least at the trial stage
67. That is Mr Reid's case on issue overlap. As can be seen, it is not very great when viewed in those terms. The defendants carried out the exercise of marrying up the pleadings and identifying every issue as a matter of pleading in order to see which of those issues arose in both cases. Numerically speaking, practically all of them failed to pass that test. Those that did did not demonstrate a large degree of overlap. On the first day Mr Trace provided a much smaller scale exercise which sought to demonstrate a pleadings overlap which extended to 10 areas. They largely corresponded to the points raised above. In my view the answers to them are given above –the facts may be referred to in the pleading but it does not follow that they are issues in both actions. The defendants having done their exercise, Mr Reid's team then over the weekend used the Capita 2 list of issues as a starting point and produced its own version, adding a few issues to it. This list disagreed with the conclusions of the defendants in most cases, and in most cases that the point was "in Capita 1". A closer inspection revealed that the parties were not addressing the same thing. The defendants had dealt with the matter on a pleaded issue basis. Mr Reid's team approached it on the basis of whether the point would come up, or had come up already, in the evidence. So far as an analysis of the pleaded issues is concerned, I prefer the defendants' effort. So far as the claimant's effort is concerned, it may demonstrate where there are some areas of evidence in common in each case. Some might be thought to be more significant than others. This brings me to Mr Trace's next point.
68. Having sought (unsuccessfully) to equate the actions in terms of issues, Mr Trace then referred to "Evidential Overlap". He said that the trial judge in Capita 1 would have to make findings which are directly material to, and which would affect the proper conclusions of the issues in, Capita 2. He listed 7 of them – Mr Edwards's ongoing relationship with Reid Minty after the sale, whether he was promoting ProLegal at the expense of Reid Minty whilst performing (or at a time when he should have been performing) marketing services under the alleged consultancy agreement, the role of Mr Edwards et al in Reid Minty's ULR department prior to the sale, the circumstances of Mr O'Shaughnessy and Mr Thompson leaving Reid Minty and when they decided to leave, the circumstances in which ProLegal was conceived and instituted, the ownership of ProLegal and the reasons why Reid Minty's clients gave their work to ProLegal. It will be noted that most of those appeared in the alleged issue overlap. I do not see why the trial judge will need to make any findings about all or most of those in Capita1 even if they are raised in cross-examination. They are not germane to the issues in Capita 1 for the reasons given above. If the trial judge knows that they are or may be the subject of a future trial, then doubtless he or she will be careful not to decide them unless it is necessary to do so (which by and large it will not be). That will not necessarily lead to an unfair or artificially constrained trial. It will leave more peripheral issues, going at most to credibility, where they belong.
69. Next Mr Trace relied on credibility points. His central thesis was that some or all of the issues and points raised above will be raised as a matter of credibility in Capita 1 where they are actually issues in Capita 2. The best example is probably the existence of Mr Edwards' alleged consultancy agreement, which lies at the heart of Capita 2 but which is only a credibility point in Capita 1. They will therefore, says Mr Trace, come up in, and be relevant in, both actions. The answer to that is they may well come up in both actions, but they are relevant to each in different ways. It will not be necessary to make findings on them in the action in which they are credibility points – see above. This sort of evidential overlap is not necessarily a weighty factor in the balancing exercise that has to be carried out in determining whether there should be concurrent trials of the two actions.
70. Last Mr Trace relies on the possibility of inconsistent judgments. I have already dealt with this. I cannot identify a single issue on which it would be necessary to reach a binding decision in Capita 1 which would lead to a risk of an inconsistent judgment in Capita 2. I do not think that this is a weighty factor. If it is thought that there is a possibility of an accidental finding which would give rise to such a risk, the trial judge can be alerted to this risk. This particularly relates to credibility points in Capita 1, if it exists at all.
71. So far I have taken the various heads, and various points within them, one by one. However, it is also appropriate to stand back and take an overall view, taking their effect altogether. There may be cases in which single points, or individual heads of points, do not make a compelling case for a joint trial of two actions, but an aggregate of them does. There is no doubt that the two actions have an element of common factual background, and will share many of the same witnesses. They will cover some of the same facts on both actions. However, even taking this broader view, I do not consider that the relevant degree of common material, or overlap, makes a strong case for joint trials. The actions are, and will remain, about different things, and they can very appropriately, and in my view, safely, fairly and sensibly, be held separately.
72. The bottom line thus far in the reasoning is that the case for concurrent trials is not a strong one. Capita's position is that all things being equal, they would not necessarily oppose such a trial, no doubt because if they have to have two trials they might as well have them together, subject to practicalities and timetabling. However, all things are not equal. The trial of Capita 1 is coming up, and it does not accept that the acceptability (which is the highest I think that it can be put from their point of view) is not enough to justify losing that date. The other defendants actively oppose concurrent trials, whenever they might otherwise take place. They would be subject to having to sit through a much longer trial than they would otherwise have to sit through, with possibly a lot more documentation than they would otherwise have to bother with (though a lot of the documentation is likely to be common to both actions, in my view). There is also the possibility that hearing Capita 1 first will, in practice if not in strict theory, lead to a slimming down of Capita 2 (though this is a matter of intelligent guesswork rather than reasoned analysis). The time estimate for the trial of Capita 1 is 4 weeks. There was no agreement on what adding Capita 2 to it would add in terms of time, but it would nothing like double it. There was a dispute as to the length of Capita 2 by itself – Mr Trace estimated it at 3-4 weeks; the Capita 2 defendants did not agree with that and said they thought it would be much shorter. Doing the best I can, I think that a joint trial would involve the first four defendants in Capita 2 sitting through large parts of an action that did not concern them. For those defendants, and in particular the three individuals, that is a significant burden, both in terms of time and in terms of costs. I was informed that their costs are not being paid by Capita. That burden outweighs such advantages as there might be in having concurrent trials. Those timing disadvantages cannot, in my view, be mitigated sufficiently successfully by what Mr Trace called case management – the possibility that the defendants and their representatives could avoid attendance during periods of the trial when matters were taking place which did not concern Capita 2. I think that that approach is unlikely to be realistically achievable to any significant extent.
73. I therefore conclude that the concurrency application, taken by itself should fail.

The interaction between concurrency and the application to vacate the trial date

74. So far I have considered the concurrency application as a standalone application, and applied reasoning that would apply if it were not associated with the potential loss of a trial date. If I am right in my reasoning then I do not strictly need to consider the potential loss of the trial date and the adjournment application. However, I will nonetheless consider how that affects the balance on the assumption that a better case can be made than I think can be made for having concurrent trials. If the case for concurrent trials in terms of common material were very strong, or overwhelming, then it might outweigh such factors as support the undesirability of losing the trial date. However, that is not the assumption which I am currently making. I am assuming for the purposes of this section, that Mr Trace's points in favour of having a joint trial have a degree of merit which would make the question a more balanced one. At that point the history of the matter, and the loss of the trial date, come into the balancing exercise. Mr Howard says that Mr Reid has applied too late, and has not sufficiently accounted for what is apparently a change of stance in relation to whether there should be concurrent or separate trials.
75. In Ixis Corporate & Investment Bank v Westlab AG and others [2007] EWHC 1748 (Comm) there was an opposed application to consolidate proceedings. There was a significant degree of issues of overlap of fact and law in the case (see paragraph 41). Despite this, Aikens J concluded that it would not be fair and just to consolidate the two sets of proceedings. There was a scheduled trial (a long one) in about 6 months and it would not have been fair to require one particular party to rush to be ready. He explained that:

a) "… in my view it would be unfair and unjust to the present parties and the individuals whose professional judgment and character is in issue to postpone the trial date beyond January 2008." (para 40)

76. Mr Howard says that that demonstrated that in that case the keeping of the trial date was the judge's starting point, and sought to draw parallels in that respect between the present case and this one. I do not think that this parallel really exists. It was a starting point on the facts of that case. That sort of consideration will be particularly fact-sensitive. I do not make it a starting point for consideration in the case before me. While I consider that Capita has a strong legitimate interest in keeping the trial date, the sort of factors that weighed with Aikens J are not present in my case, or at least not to the same degree. Capita is entitled to rely on the need for certainty, particularly against the background of one lost trial date more than a year's delay flowing from that. It is also entitled to pray in aid that this is the sort of litigation that it wants out of the way bearing in mind that its business involves buying in other businesses. But those factors do not lead me to the same conclusion as Aikens J reached on the primacy of maintaining the trial date. The farthest that I go is acknowledging that a strong case will have to be advanced for displacing this second trial date, especially bearing in mind the serious delays that have already happened and the fact that the events in question occurred some large number of years ago and recollections will be dimming rapidly.
77. Mr Howard also relied on Borealis AB v Stargas Ltd [2002] EWCA Civ 757. In that case a party applied, at a very late stage, to join a foreign defendant. Joinder would have apparently threatened a trial date (see paragraph 3). One of the factors taken into account by the first instance judge was that the applicant had failed adequately to explain the lateness of the application. That point was also significant to Rix LJ. At paragraphs 50 to 52 of his judgment he said:

"50. Although an immediate decision perhaps could not have been expected at the time, it should not in my judgment have taken long for Stargas and its legal advisers to consider their position carefully. In effect, despite Mr Siberry's submissions today, the court has had no adequate explanation as to the delay of a year which then occurred. If Mr Siberry's explanation is to be taken at its face value, it simply amounts to a very serious error whereby, at the latest in September 2001 when the case management conference was before the commercial judge and all aspects of this case were under consideration, Stargas continued to leave on one side the question of whether a party, now described as the Hamlet of the proceedings, should have come on to the stage.

51. Against the background of an increasingly imminent trial date, the importance in such circumstances of a proper and frank explanation of the reason for delay should not be underestimated. The danger is that tactical decisions could have been taken and re-taken which, if considered in the cold light of day, would not justify disruption to the trial. However one wants to look at it, whether as a matter of fairness, proportionality or overall justice, the court is not able to found a safe decision on such questions without, as it seems to me, a proper and frank explanation. The later a decision is made which could, and it might be said should, have been made earlier, the more the court is entitled to be concerned lest tactical considerations have entered into the matter.

52. I would accept that there is a delicate line to be trod here between privilege and candour. But if a party asks for a special dispensation to be shown to it, and there can be few dispensations more special than a litigant asking to join a new party to long existing proceedings on what is, relatively speaking, if not the eve of the trial at any rate a short period before it, then such a party must carefully consider how candid it can be with the court. It is fully entitled to rest on its privilege, but then the court is not assisted with any explanation. The delay from March 2001 to March 2002 is a critical period and there has simply been no adequate explanation of that delay."

78. Mr Howard relied on this as demonstrating the strength of case that had to be advanced if a trial date, and in particular a reasonably imminent trial date, was to be vacated, and as demonstrating the need for a candid explanation of why the application was being made. I agree with him. Mr Howard went on to say that a proper explanation had not been forthcoming, and since there was no particularly good reason, whether one advanced or otherwise, for an apparently late appreciation of the need for concurrent trials, then an application for a concurrent trial which would necessitate the vacation of the trial date should be rejected for that reason.
79. I have already set out a lot of the detail of the history of how Capita 2 came to be intimated and then started. It demonstrates clearly that Mr Reid was aware of the underlying facts in October or November 2007. He knew enough for him to be able to articulate a claim. Mr Trace accepted that for that claim to be properly articulated and propounded Mr Reid must have had proper material for that purpose, and that that material would have been sufficient to justify proceedings being issued at that time. They were not issued then, and were in fact not issued until the end of June 2008. They were served a month later. They were then followed by a muffed attempt to raise the concurrency point. This attempt was not, in my view, due to some secret desire not to have concurrency, contrary to appearances. It was simply due to a mistaken way of going about things and a failure to appreciate that urgency was required. The real period for which an explanation is required is the period from October/November 2007 to the end of June 2008. Why were proceedings not commenced then, particularly in the light of the professed willingness, if not requirement, of Capita that they should be?
80. The explanations, such as they are, are given by Mr Fenn in his 12^th and 15^th witness statements. He says that after the order for disclosure in November 2007 Mr Reid decided to wait until further disclosure was given in Capita 1 before embarking on the new proceedings (Fenn 12 para 19(3)). He then sought permission to use disclosed documents, which took a little time. Having obtained permission to use documents, the letter before action was sent in June 2008. "Thereafter Particulars of Claim were settled by Mr Antony White QC" (Fenn 12 para 20). He goes on in paragraph 23:

"Once Mr Reid's claims in what was to become Capita 2 had been formulated, and he had taken advice from Leading Counsel, he took the view that it would be vital for that Claim to be heard at the same time as Capita 1."

So having sent the letter before action and served the proceedings, Mr Fenn wrote to Addleshaw Goddard at the beginning of August inviting their agreement to concurrent trials, and inviting them to agree directions. This seems to put the appreciation of the need for concurrent trials in the summer of 2008.

81. Mr Fenn's 15^th witness statement, designed to deal with "criticisms" which had been voiced in court, returned to the point. By "criticisms" it is to be assumed that he meant Mr Howard's reliance on the fact that a good explanation was not given. This witness statement is therefore particularly significant as having been prepared in that context.
82. In paragraph 7 he repeats that while Mr Reid was able to instruct Reid Minty to write their letter of 10^th October 2007, he took the view that before commencing proceedings he would wait until the outcome of the further disclosure ordered by Kitchin J in an order of the next month. That order provided for amended pleadings, and for further general standard disclosure to be given by the end of February 2008. He then embarks on a criticism of the disclosure given by Capita. This may or may not be justified, but it is beside the point in this context. If there is a question about it at this point in the chronology it is really whether Mr Reid had enough to be able to start proceedings, and the answer to that question is plainly Yes. He had enough in October 2007; he was able to have the letter written, and there was enough there to start the claim. He had known about Mr Edwards' involvement in ProLegal some considerable time before that. I asked Mr Trace what documents from the February 2008 disclosure were pleaded; in other words, what advantage in pleading did waiting for those documents give him? Mr Trace identified a handful of documents, most of them short emails, which put some flesh on the bones but do not provide a justification for the claim that would not otherwise be there. In other words, Mr Reid could have started his proceedings in basically the same form by the end of 2007.
83. In paragraph 16 of this 15^th witness statement Mr Fenn then says:

"The ongoing disclosure of documents in Capita 1 began to reveal the claim that became Capita 2. Mr Reid however at that stage understandably wanted to finish the Capita 1 trial before directing his mind, and indeed finances, to the Capita 2 action. This was of course on the basis that a full and final settlement with Capita which Mr Reid hoped for, could not be achieved."

84. He does not make it clear there what "at that stage" means, but it seems from the next paragraph that it must have been up to February, or perhaps early March, 2008, because paragraph 17 goes on to say that in March 2008 Mr Reid became concerned about the abuse of process arguments, a point drawn attention to again by Addleshaw Goddard in their letter of 17^th March 2008. Mr Reid apparently felt he must put aside his concerns over the funding of 2 heavy and costly actions, and his hope for settlement, and commence the Capita 2 proceedings. However, he found himself faced with 2 problems. The first was a mediation which was proposed (and which ultimately took place on 2^nd May – see above). He did not want to start proceedings in advance of the mediation because it would "raise the temperature" and make a mediated settlement more difficult. The second was that disclosure by Capita was still inadequate.
85. These reasons are difficult to understand, and indeed difficult to accept. So far as raising the temperature is concerned, Mr Reid had firmly flagged his intentions to bring a second action by his letter of October 2007, which clearly identified the nature of the claim. In February/March next year he asked for further permission to use disclosed documents for the purposes of the proposed second action, and he announced that proceedings had already been drafted. There was therefore no doubt as to his ostensible intentions. Elsewhere Mr Reid has made it plain that he hoped that the mediation would produce an outcome which satisfied him in relation to both claims. That would only be achieved if, in effect, the second claim was mediated as well. If it was left entirely out of the frame then he would be less likely to get an adequate settlement. His chances of getting a larger sum by way of settlement would be advanced only by putting forward the second claim. Furthermore, if the second claim was lurking, and if it was to be finally dealt with, Capita itself would want it wrapped up. Accordingly, this tactic of trying to settle both (which was sensible enough in itself) could only be advanced by propounding both claims. In those circumstances I fail to understand how commencing proceedings would raise the temperature. It would only, if it achieved anything, advance the cause. So far as disclosure is concerned, he had enough documentation in October, and he had even more in February, so he did not need to wait for yet more. So all this is very unconvincing.
86. The mediation failed to achieve a settlement. Fenn 15 says that Mr White QC was then "sourced" as someone who could settle the proceedings in June 2007. No clue is given as to what was happening in May. The subsequent events appear from the narrative above.
87. What appears from this is that Mr Reid originally, and on his own admission, intended to run Capita 2 after Capita 1 was finished. That was a tactical decision, of the kind referred to by Rix LJ in Borealis. I do not use the word "tactical" in any pejorative sense. It was the way he was going to seek to run things. He had the possible abuse argument pointed out to him, but he originally ignored it. Again, he must have taken the tactical decision to run the risk of that. It was said that he then appreciated that there was a point, and that it began to concern him. If that is true, he did not act like someone who was concerned. If he were truly concerned, and focussing properly, he would have realised that the abuse argument (so far as good) could only be avoided by a joint trial, and that that required the prompt start of Capita 2 so that it could catch up. He did not act like a man who had appreciated the point, because his progress to the commencement of proceedings was relatively leisurely, and commencement took place at a date which made it difficult if not impossible for Capita 2 to catch up. The disadvantages of separate trials which he now puts forward were not sufficient to induce him to start proceedings early enough to let Capita 2 catch up and to accede to the suggestion of Capita that there should be joint trials. It has not been explained whether he failed to appreciate those points or whether he appreciated them but has now somehow changed his mind about their strength.
88. To summarise, therefore, the evidence shows the following. Mr Reid could have put Capita 2 in motion in October 2007. Had he done so there is a very good chance that it could have caught up with Capita. He did not do so. At the same time he rejected the notion that Capita 2, when started should catch up. He wanted 2 trials, not one. He persisted in that view for many months, and probably until such time as it would have become impossible, or unfair on the defendants on Capita 2, to get it to catch up. He has apparently changed his mind. The account of his thought processes is very unconvincing and incomplete. Some of it is very hard to credit, and leaves me with the impression that I am not being told the full story. His change of mind (if that is what it was) came at a late stage, and was then followed by a chain of procedural events in August, September and October 2008 which were ineffective and inappropriate to get the concurrency application on foot and determined.
89. The result of all that is that the court and the defendants are faced at a very late stage with the concurrency application. It has not been made promptly in any sense of the word. It is belated and is unaccompanied by a satisfactory explanation. Mr Reid has changed his tactics for his own purposes, some of which are probably undisclosed. He has not discharged the sort of informal burden which Rix LJ has suggested he is under.
90. In those circumstances it is unfair on defendants who do not want the trial delayed to force delay upon them. That unfairness is considerable, particularly bearing in mind the fact that they originally alerted the claimant to the possible need for joint trials. So far as there is a case for saying a joint trial is desirable, it is outweighed by the lateness with which the second set of proceedings was commenced, and with which the concurrency application was brought (the latter being, in part, a function of the former – you can't start concurrency proceedings until you have a set of proceedings to which concurrency can apply). Accordingly, I would reject the concurrency application even if there are areas of common fact which would otherwise make a joint trial desirable, or at least appropriate. If that creates difficulties for Mr Reid, they are entirely of his own making. If it creates difficulties for the defendants, they do not seem to mind. I should record that Capita acknowledged that their stance in relation to this application meant that they could not take the abuse point referred to in correspondence.
91. On that ground, too, I therefore reject the concurrency application.

Conclusion

92. I therefore dismiss the concurrency application and the application to adjourn the trial date.

Note 1   It did not end there. When this judgment was well-advanced in its draft form, McGrigors faxed a further short report by Dr Myers, with a short statement from Mr Davies. There has to be an end to this, and in my discretion I refused to admit that material.    [Back]