28th Sep 2023


Thomas Roe KC and Katharine Bailey (instructed by JMW Solicitors LLP) for the Claimants

Mr Justice Constable:

This is an application to adjourn a trial heard by the Court on an urgent basis. The application is brought by the Defendant, University of Portsmouth Higher Education Corporation (‘the University’) in relation to the upcoming trial of a claim brought against it by the Claimant, Innovate Pharmaceuticals Limited (‘IPL’). The trial is listed for a hearing commencing 2 October 2023, a week today. IPL contests the application. The University relies upon the tenth and eleventh witness statements of Mr James Hyde, a solicitor at Eversheds Sutherland (International) LLP (‘Eversheds’). IPL relies upon the tenth witness statement of Philip Partington of JMW Solicitors LLP (‘JMW’). This is a finalised version of the judgment I gave orally at the end of the application. 

The Claim arises out of an agreement between IPL and the University pursuant to which the University agreed to carry out a programme of laboratory research in a liquid formulation of aspirin known as IP1867B (‘the Drug’), the patent for which is held by IPL. The claim centres upon a representation made in a text message from a Dr Hill on 10 August 2018 which stated that data from the Research Programme indicated that the Drug had the effect of suppressing the IGF receptor thereby alleviating resistance to inhibitors of EGFR in a proposed treatment of glioblastoma (‘the Representation’), and an Article and Corrigendum, published in Cancer Letters in August 2019 and later retracted. The issues for the Court relate to the correctness of the Representation and, if not correct, whether Dr Hill had good reason to consider that the Representation was correct, such that his conduct did not constitute fraudulent misrepresentation; whether the Article constituted a breach of contract, and/or contained misrepresentations, or fraudulent misrepresentations. The investigation of the dishonesty related allegations are important as they may affect the application of a limitation clause. Causation and loss are in dispute. The quantum dispute is significant, relating in particular to lost projected profit (ranging between £0.5m and £94m on based on the evidence of the respective experts). There are set to be 9 witnesses of fact, and 2 sets of experts dealing with liability issues and with patent value. 

The principles to be applied in an application of this sort are not in dispute. They were set out by Coulson J (as he then was) in Fitzroy Robinson v Mentmore Towers [2009] EWHC 3070 (TCC). Considering the decision of the Court of Appeal in Boyd and Hutchinson (a firm) v Foenander [2003] EWCA Civ 1516, his Lordship identified that the court must ensure that the parties are on an equal footing; that the case is dealt with proportionately, expeditiously and fairly; and that an appropriate share of the court’s resources is allotted, taking into account the need to allot resources to other cases. More particularly, a court when considering a contested application at the 11th hour to adjourn the trial, which this undoubtedly is, should have specific regard to:

a) The parties’ conduct and the reason for the delays;
b) The extent to which the consequences of the delays can be overcome before the trial;
c) The extent to which a fair trial may have been jeopardised by the delays;
d) Specific matters affecting the trial, such as illness of a critical witness and the like;
e) The consequences of an adjournment for the claimant, the defendant, and the court.

I have also been directed to a further observation by Coulson J in Elliot Group v GECC UK [2010] EWHC 409 (TCC), in which he said that the court is faced with a balancing exercise between, on the one hand, the obvious desirability of retaining a fixed trial date (which promotes certainty) and avoiding any adjournment (which can only add to the costs of the proceedings) and, on the other, the risk of irredeemable prejudice to one party if the case goes ahead in circumstances where that party has not had proper or reasonable time to prepare its case.

I therefore turn to consider the issues by reference to the foregoing, and the Defendant’s submission that, were the trial to proceed, it would suffer irredeemable prejudice.

The Parties’ conduct and the reason for the delays

At the heart of the application to adjourn is a complaint about the timing and content of the trial bundle. 

By Order of Adrian Williamson KC, sitting as a Deputy Judge of the High Court, made at the PTR, the Claimant was to send to the Defendant a draft trial bundle index 7 weeks before the trial date. That would have been 14 August 2023. A week later, comments were to be provided by the Defendant, and a week later (28 August 2023) the trial bundle was to be provided. 

Ms Dixon KC on behalf of the University points to delays, in particular, to bundles C2-C10, containing exhibits to the expert reports (although these complaints were not central to her oral submissions), and, to the ‘D’ bundle, which contains the parties’ disclosure documents, which her submissions did focus upon. These bundles were not delivered until Friday 15 September 2023, and even then were subject to revision. That is 10 days ago, just less than three weeks after they were due to be served under the Order made at the PTR. 

The Defendant also complains that, contrary to paragraph 15.2.3 of the TCC Guide, Bundle D contains all disclosure. Paragraph 15.2.3 states: 

‘Documents should only be included if they are relevant to the issues in the case or helpful as background material. There is no need to include every disclosed document in the chronological bundle and parties should seek to agree a chronological bundle of documents likely to be referred to or required for context.’

At the PTR, both parties gave estimates of the size of the trial bundle (Claimant 3,500-5,000 and Defendant 4,500-6,500). However, on 11 August 2023, JMW informed Eversheds that the trial bundle would contain all disclosure documents in chronological order. The letter stated that, further to a previous letter dated 8 June 2023, the Defendant’s disclosure list was not in chronological order because the dates of numerous documents were in ‘American’ date format, in which the month and date were transposed when compared with British format. A revised disclosure list was therefore sought.

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