Sensible commercial people seldom want to devote time, energy, and company funds to dispute resolution. Often they are more interested in obtaining an answer to the dispute than ensuring every issue is properly aired and minutely considered. In acknowledgement of that the Courts sitting in the Rolls Building in London, including the Technology & Construction Court, have commenced two 2-year pilot schemes: the Shorter Trial procedure and the Flexible Trial procedure. The aim of both pilot schemes is to achieve shorter and earlier trials for business-related litigation, at reasonable and proportionate cost.
The schemes start this month (October 2015) and follow 12 months of preparation.
The Shorter Trial procedure offers dispute resolution on a commercial timescale. Cases will be managed by an allocated Judge with the aim of reaching Trial within approximately ten months of the issue of proceedings, and Judgment within six weeks thereafter. The procedure is intended for cases which can be fairly tried on the basis of limited disclosure and oral evidence. The maximum length of trial would be four days, including reading time.
The Flexible Trial procedure involves the adoption of more flexible case management procedures, where the parties so agree, resulting in a more simplified and expedited procedure than the full trial procedure currently provided for under the Civil Procedure Rules.
The Shorter Trial pilot scheme is intended for commercial and business cases which do not require extensive disclosure, witness or expert evidence. It is expected that the Judge allocated to the case will deal with it from the outset to Judgment.
The scheme is not mandatory; it is up to the Claimant to elect to ‘opt in’ at the time of issuing the claim. The parties may also adopt the scheme by agreement or the Defendant may apply for an order that the claim be transferred into the scheme. The Courts may encourage the parties to opt in where a claim seems appropriate.
There is no need to comply with one of the pre-action protocols, but a Letter of Claim should be sent notifying the Defendant of the intention to issue in the scheme to which the Defendant should respond within 14 days.
On issue of the Claim Form the Claimant should take steps to fix a case management conference hearing for approximately 12 weeks after the date for acknowledgement of service. The case management conference is a hearing before the allocated Judge who will review and approve a list of issues, resolve any disputed document request and give directions to the trial date. The trial will be fixed for a date not more than eight months after the case management conference. Factual and expert evidence will normally be in writing and limited in length. Evidence from witnesses of fact will be limited to identified issues.
There is virtually no possibility for any extensions of time to the trial timetable, even if the parties agree to it. Timetables can only be extended by the Court, and for good reason.
The trial will be before the same designated Judge (unless that is impractical) and will not last more than four days. The Court will endeavour to hand down Judgment within six weeks of the trial or (if later) final written submissions.
The parties’ costs of the entire case will be assessed summarily by the Trial Judge, the parties having exchanged schedules of cost three weeks before the Trial. Otherwise, there is no costs budgeting regime.
A default Flexible Trial procedure has been prepared by the Courts. This procedure is adapted by the parties by agreement to suit their particular case. Trial procedure encompasses pre-Trial disclosure, witness evidence, expert evidence and submissions at Trial. It is designed to encourage parties to limit disclosure and to confine oral evidence at Trial to the minimum necessary for the fair resolution of their dispute. Its aim is to reduce costs, reduce the time required for Trial and to enable earlier Trial dates to be obtained.
The procedure requires flexibility and cooperation which is not always the first inclination of litigation lawyers, but given the Court’s intention in providing the flexible Trial procedure, there is a heavy onus on the parties to cooperate. Even with the parties’ agreement, however, the Court retains ultimate control over the procedure to be adopted.
Those of us who practice in the Technology & Construction Court have, for some time, been aware of a more interventionist approach from Judges. These new pilot schemes are a step on the road to instituting such an approach. The possibility in appropriate cases of quicker resolution at proportionate cost is to be welcomed. Whilst it remains to be seen if one or both of the schemes is a success in terms of the law, I have little doubt that commercial people will be keen on them.