Let me you ask you a simple question. At what time do you throw in the towel at the end of the working day? When do you think enough is enough and head for home?
Flexi working has encouraged employers and employees to open the mind and think differently about their start and finish times but on High Court judge has given lawyers and clients a warning about setting unrealistic deadlines, after receiving an evening email to say a hearing could not wait.
The Honourable Mr Justice Fancourt explained that his clerk was recently emailed by lawyers at 7.52pm asking for an urgent hearing that same evening, to deal with the pre-pack sale of Nationwide Crash Repair Centres Ltd. The weighty email comprised of bundles and a skeleton argument, as well as the required certificate of urgency.
Initially, it was thought that applications to appoint administrators would be heard the following morning, but another email from lawyers at 9.16pm said that a deal agreed with a purchaser would be pulled if not completed by midnight. The hearing was held by telephone that same evening and the order was finally made at 11.56pm. It later transpired that the midnight deadline had been included in contract documents negotiated over the preceding days.
The High Court Judge involved in the matter said there was nothing in the circumstances that required such urgency, and the deadline was only necessary because of the terms agreed outside the court’s control. Honourable Mr Justice Fancourt added: “It is wholly unacceptable for client and lawyers and other professionals acting for them to negotiate terms that have the effect of presenting the court will (sic) an artificial ultimatum and require important matters affecting the livelihoods of thousands of people to be decided under undue pressure of time.”
He went on to stress that the court was not to be treated as a “rubber stamp” for the appointment of administrators and warned that applicants should allow time for a fair hearing to be held.
Administrators were appointed to handle the sale of the repair business. The court was told that the sale would bring an immediate return to secured lenders of around £26.7m and save almost 2,900 jobs. The only realistic alternative was to force the repair centre into liquidation, with all jobs lost and returns reduced to £19m.
We bring this story to light because it is important to note the judiciary’s standpoint on these apparent urgent midnight hearings. In our experience, parties use these artificial pinch points to apply unfair pressure to bolster their already unequal bargaining power. We believe the best all-round results arise from situations where due care and attention, together with some reflection time, is afforded to the matter in hand and then planned accordingly in advance. We urge you to contact us to discuss any potential situations you have and consider working alongside us as trusted strategic partners to maximise the benefit to you in your business, rather than the last-minute rush which is often both damaging and costly.
Dated: 18th January 2021
*Nothing in this article constitutes legal advice or gives rise to an advisor/client relationship. Specialist legal advice should be taken in relation to your specific circumstances. This article is provided for general information purposes only. Whilst we endeavor to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and we do not accept any liability for error or omission as it is based upon our interpretation of the law. Please be aware that the legal circumstances may have changed since this article was first published in January 2021 and you should contact us for specific up to date advice on your circumstances.