The restriction of new issues being raised at trial (Re Fundão Dam Disaster)

This case serves as a reminder that proportionality and the overriding objective remain key in respect of case preparation and in terms of the issues that the parties may advance at trial. In particular, parties will not be allowed to raise new issues at the eleventh hour that have not been adequately brought to the attention of the other side, certainly where an opportunity to consider the same would be required by the opposing party, and where this would risk derailing the trial timetable. The power to exclude such issues from consideration is expressly provided for pursuant to CPR 3.1. Further, where a party seeks to appeal a case management decision prior to the handing down of a substantive judgment, it is prudent to consider the making of that application to the judge seised of the case. At the very least, it is important to ensure that the judge in question is made aware of the application and promptly so.

This analysis was first published on Lexis®PSL on 22/09/2020

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