Those principles remain applicable.
9 At the risk of stating the obvious, I shall make some remarks about what is needed to enable the principles for granting expedition to work in practice.
10 The mode of making an application for expedition is by filing a notice of motion, which is made returnable before the Expedition Judge, seeking that the hearing of the matter be expedited or such other order as might be appropriate. When a case is stood over in the Expedition List, that notice of motion will be treated as being stood over.
11 To be able to prove any matters which an applicant for expedition asks the court to take into account in deciding whether to expedite a case, it is an elementary procedural necessity that there to be an affidavit which proves the matters which are relied upon for that application.
12 There are, broadly, two types of relief which are granted in the Expedition List. One is the giving of directions in cases which might possibly be suitable for an expedited hearing. The other is the fixing of a case for hearing on an expedited basis. On some occasions, it will be appropriate to both fix the case for hearing and on the same day give directions for preparation of the case for hearing. On other occasions, it will be appropriate to give directions, and defer the question of whether the case is suitable for an expedited hearing. An affidavit of grounds for expedition will be needed before either type of relief is given. If a case has been retained in the Expedition List for the giving of directions, but no hearing date has been fixed, a practitioner who seeks an expedited hearing date will need to consider whether the affidavit which was filed when the matter was first permitted to remain in the Expedition List continues to explain adequately the need for expedition, or whether an updating affidavit should be filed before an expedited hearing date is applied for.
13 Decisions about whether a case is to be expedited in any way should be able to be made solely on the basis of the affidavit filed in support of the motion for expedition, and any other affidavits which are filed for the purpose of the notice of motion and which supplement or contest the facts set out in that affidavit. It would rarely be appropriate to identify an affidavit that has been filed for the purpose of the principal proceedings, as the affidavit to be relied upon in support of expedition.
14 In many cases it will be appropriate for the solicitor for the applicant to be the deponent of the affidavit in support of expedition. The affidavit will be most helpful to the Court if it actually states all the factors that are relied upon to establish that the case is a suitable one to be expedited. One part of stating those factors will involve giving a concise account of the issues likely to be involved in the case. It is a specific requirement of Practice Note 43 that an affidavit in support of an application for expedition
"should state the grounds for expedition and the issues which it is anticipated will arise."
15 It follows from this that it should not be necessary to read the pleadings, or the affidavits filed for the purpose of the principal proceedings, to understand what the issues are likely to be.
16 Simply stating the factors relied upon to establish expedition will sometimes involve the affidavit not complying with the rules of evidence. However, as that affidavit is one used in an interlocutory proceeding, in which the Court has power to dispense with the operation of a rule of evidence in appropriate cases (section 82 Supreme Court Act 1970, section 9 Evidence Act 1995), there is a fair chance that if objection is taken to such an affidavit the Court will be prepared to dispense with those rules, within the limits that section 82 Supreme Court Act allows. However, there may be some matters concerning which it would be desirable, even at the stage of seeking expedition, to give proof by more than a solicitor's affidavit. If, for instance, one of the bases of the application is that the health of a party or witness is such that expedition is needed, and that is not a matter which ought be clear to all the other parties, it would usually be prudent for the applicant to prove that state of health by better evidence than the say-so of a solicitor.
17 It is not appropriate for an affidavit seeking expedition to be very long. Any documents which need to be made part of the evidence on the application for expedition should be annexed, not exhibited, to the affidavit.
18 If there is any matter other than the reasons for expedition, and the issues, which the applicant is planning to ask the Expedition Judge to take into account in giving directions or setting the matter down for hearing on a particular date (such as that a particular judge has heard a related application, and therefore either should, or should not, hear the case for which expedition is sought, or that a witness is likely to be unavailable during a certain period), that also should be included in the affidavit.
19 The Expedition List is held on a Friday. If an applicant for expedition is to obtain any orders at all on the basis of the affidavit, it is necessary that it be both filed, and served, several days before that Friday. This is both to enable the other parties to the litigation to consider the affidavit (and put on affidavits which take issue with any contention in it which they dispute), and also to enable the judge to consider it in advance. Giving the judge the opportunity to consider it in advance is particularly important because in fixing cases for hearing the judge needs to consider the relative urgency of all the cases in the list. Save in unusual cases, if an affidavit giving grounds for expedition is not filed by the Tuesday of the week the notice of motion is due to be heard, the notice of motion will be dismissed. In cases of pressing urgency, it may be possible to obtain leave for short service of a notice of motion and affidavit seeking expedition.
20 Whether an expedited hearing is granted, or precisely when it is granted, depends, to some extent, on how long the case is likely to take. Thus, an affidavit seeking the allocation of an expedited hearing date should give an estimate of how long the case is likely to take. It is most important that such estimates be realistic, arrived at after considering the total number of witnesses to be called, the likely length of cross-examination, and the likely length of addresses.
21 It should not be assumed that any great weight will be given to the convenience of counsel when allocating a date for an expedited hearing.
22 In the hearing of an Expedition List on a Friday, cases will not necessarily be called in the order in which they appear in the printed list. Usually, however, the Expedition List will be dealt with in its entirety before the one-day list is dealt with. This will allow such early dates as are available to be allocated to cases in the Expedition List which are ready to take a date, and only then will such early dates as remain be allocated to case in the one-day list which are ready for hearing but of no particular urgency.
23 In the present case, the absence of an affidavit complying with the Practice Direction has meant that it has, in practice, not been possible to form a view about the urgency of the matter. For that reason, I dismiss the notice of motion seeking expedition.
24 As the proceedings are before me, it is open to me to give directions in the proceedings. I direct the plaintiffs to file and serve any additional evidence upon which they seek to rely by Wednesday 9 February 2005.
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