An Advance on Damages Ordered Despite a Trial Adjournment

The Dispute

The plaintiff had already had a trial date confirmed for a scheduled hearing when the defendants sought an adjournment on the eve of trial. The defendants had admitted liability well before that date, but months later filed an amended trial brief adding new lay witnesses and disclosed additional video evidence only in the week before trial. Both sides agreed the time originally set would not be enough to hear the added evidence, and the court found the defendants had left much of their trial preparation until after the trial management conference held months earlier.

The Parties’ Positions

The plaintiff opposed a further loss of the confirmed trial date and argued that the defendants’ own late-added lay witnesses and video evidence, not any default by the plaintiff, made an adjournment necessary. The plaintiff sought costs thrown away payable immediately, an adjournment limited to a stand-pat basis with no new expert evidence for either side, and a $100,000 advance on the plaintiff’s damages, submitting that the eventual award would clearly exceed that amount given the admission of liability already on the record.

The defendants did not seriously resist the adjournment or the costs-thrown-away order once it became clear the added evidence could not be heard in the time scheduled. They opposed any advance payment, stating they were not instructed to propose a dollar amount, though their own trial materials had already acknowledged the plaintiff was entitled to some compensation. The defendants also asked that the parties retain the right to update the multipliers in their economists’ reports once a new trial date was fixed, given the time that would pass before the rescheduled hearing. The court was left with no finding on whether the defendants had, in fact, complied with the earlier order to produce photographic and video evidence to the plaintiff, since neither side pressed the point to a decision at the hearing.

The Court’s Decision

The court adjourned the trial generally, agreeing that the time originally scheduled could not accommodate the expanded evidence and finding that the defendants’ late preparation had frustrated the purpose of the earlier trial management conference and wasted the court’s and counsel’s time. It ordered costs thrown away, payable forthwith once assessed, and confined the adjournment to a stand-pat basis: no new or additional expert reports from either side, with a narrow exception allowing the defendants to pursue further discovery only on documents the plaintiff produced that same day. The plaintiff kept the right to argue, at the rescheduled trial, for further costs tied to the late-disclosed evidence. On the advance payment, the court accepted that the defendants’ own trial materials recognized some entitlement to damages and ordered $50,000, midway between the plaintiff’s request and the defendants’ refusal to propose any figure. It also directed a further trial management conference and required the defendants to deliver will-say statements for every new witness within 30 days.

Key Lessons for Plaintiffs and Defendants

• Complete trial preparation, including any new lay witnesses or video evidence, before a trial management conference confirms the parties are ready for trial, not after it. Adding evidence once readiness has already been confirmed risks both an adjournment against the defence and an order for costs thrown away.
• Expect an adjournment obtained this way to come on a stand-pat basis. A court can bar new or additional expert evidence once an adjournment follows one party’s own late preparation, so a scramble for more evidence can cost the very opportunity it was meant to create.
• Where liability has already been admitted, a defence-caused adjournment can be an opportunity to seek an interim advance on damages rather than simply losing the trial date. A defendant’s own trial materials, not only its formal admissions, can support the amount a court is willing to order.
• An adjournment does not resolve every question a late disclosure raises. Whether an earlier production order was actually met can be left open for the rescheduled trial, so civil litigants should preserve rather than abandon arguments about costs tied to that non-compliance.

The outcome of this application turned on the timing of the defendants’ trial preparation and the evidence before the court that day. A similar application may resolve differently.

ATAC LAW acts for plaintiffs and defendants in civil litigation, including the trial-readiness disputes and the costs and payment orders that follow them.