The shorter, earlier and flexible trial procedures initiative

An overview of the new trial procedures to be piloted for two years from 01 October 2015.

Last year judges from the Commercial Court, the Technology and Construction Court, the Chancery Division and Queen’s Bench Division general list (Hamblen J, Edwards-Stuart J, Birss J and Jay J) were asked by the Chancellor to investigate possible procedures, which could be adopted in order to achieve shorter and earlier trials. The judicial Committee was later expanded to include a representative from the Bar, Sara Cockrell QC (Essex Court Chambers) and from the solicitors’ profession, Ed Crosse (Simmons & Simmons LLP).

The Committee met on a number of occasions this year to prepare two distinct procedures for use in the Rolls Building courts: the Shorter Trial procedure and the Flexible Trial procedure.

The results of that were two draft practice directions which were then the subject of a consultation in May 2015. The draft procedures were modified and adopted via the publication of Practice Direction 51N. The schemes will be piloted for two years, commencing on 01 October 2015.

This note summarises the key features of each scheme. Based on the positive feedback received via the consultation, it is expected that these procedures will be increasingly adopted by claimants (and defendants) as a means of cutting down the costs and delay of pursuing commercial disputes in the High Courts in London.

Shorter Trial procedure

The Shorter Trial procedure involves streamlined directions leading to judgment within a year of issue of proceedings.

The main elements of the Practice Direction (PD) for the Shorter Trial pilot scheme are:

  • Docketed Judges to deal with cases: All cases will be managed and tried by a designated (docketed) judge only, not by Masters.
  • Definition of cases: The pilot scheme will be confined to commercial and business cases which can be fairly tried on the basis of limited disclosure and oral evidence. For example, it is not intended to be used where there are complex disputes of fact or where allegations of dishonesty will be advanced (see para 2.3 of PD51N).
  • Starting a case in the scheme: the claimant may choose to issue a case in the scheme on an “opt in” basis. If the defendant seeks a transfer out of the scheme, that application should be prompt and not normally later than the first Case Management Conference (CMC). Cases could be transferred in if appropriate.
  • Pre-action protocols will not apply but, save in cases of urgency, a letter of claim should be sent notifying the defendant of the intention to issue in the scheme. The defendant should respond in 14 days.
  • Particulars of Claim and Defence: the pleadings should be no more than 20 pages long and should attach core documents. The Claim Form and Particulars of Claim should be served promptly following the period for the defendant’s response (subject to agreement). The Defence must be served 28 days thereafter.
  • Fixing the CMC: on issue of the Claim Form, the claimant should take steps to fix a CMC approximately 12 weeks after the date for acknowledgement of service.
  • Arbitration style disclosure: The scheme includes a definition of the documents to be disclosed, which is far narrower than Standard Disclosure. In particular, disclosure will be limited to documents relied on and documents requested by the other party and either agreed or ordered. There will be no automatic obligation to carry out a search. Disclosure lists will be exchanged in advance of the CMC and when inspection is given, a Disclosure Statement will need to be produced (PD51N, para 2.44).
  • The CMC: in addition to giving directions, the court will review the issues, approve a list of issues and fix dates (or windows) for the trial and pre trial review (PTR). The trial will be not more than eight months after the CMC and the length will be not more than four days.
  • Evidence: unless otherwise ordered factual and expert evidence will be in writing. Oral evidence will be limited to identified issues as directed at the CMC or subsequently.
  • Applications: will be primarily on paper or by telephone.
  • Extensions of time: the parties may agree to a single 14 day extension for the Defence and a single seven day extension to any other date set by the rules or by directions. Otherwise time can only be extended by the court and for good reason.
  • Trial: the trial will be before the same designated judge unless that is impractical. The trial will be managed to adhere to the timetable and will be listed for no more than four days. Cross-examination will be strictly controlled by the court.
  • Judgment: the court will endeavour to hand down judgment within six weeks of the trial or (if later) final written submissions.
  • Costs: costs budgeting will not apply, unless the parties agree otherwise. Instead the costs of the entire case will be assessed summarily by the trial judge, thereby dispensing with the need for a detailed assessment. Parties will need to prepare schedules of their actual and estimated costs 21 days before the conclusion of the trial (ie pre judgment) to allow for summary assessment to take place after judgment has been handed down (para 2.59).

Flexible Trials procedure

The Flexible Trial procedure (which operates as an alternative to the above) 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 (CPR).

Subject to the overriding discretion of the court, the default Flexible Trial procedure involves limited disclosure and enables identified issues to be determined on the basis of written evidence and submissions, with oral evidence limited to key witnesses and/or issues, and oral expert evidence limited to key issues. Parties may request that these procedures be adapted to suit their particular case and have, for example, standard disclosure on identified issues and wider oral evidence.

Given the emphasis on flexibility, the proposed PD for the Flexible Trial pilot scheme simply addresses the elements discussed above.

Commentary

There will be many commercial cases, which are plainly not suitable for either of these two procedures. There is a risk that some claimants may seek to shoehorn a case into the Shorter Trials scheme in order to apply pressure to settle. The Committee was certainly alive to this risk and it is expected that the Courts will apply sanctions in costs where clearly inappropriate cases have been issued under the Scheme which later have to be taken out.

If you consider that the case is not suitable for the scheme because, for example, it is factually complex and merits wider disclosure, then it will be open you to apply for the case to be taken out of the scheme soon after it has been issued. You should do so promptly (ie well before the CMC).

Equally, some litigants may prefer to avoid the scheme in order to force a defendant to give extensive disclosure in the hope that something may turn up to support their case. In such cases, it will be open to a defendant to seek an order from the Court that the case be brought into either of the two schemes.

For appropriate cases, however, the schemes offer the chance of securing the determination of a dispute in a substantially shorter period of time and, critically of avoiding costly disclosure, protracted evidence, delay, lengthy trials and cost budgets.

Simmons & Simmons partner, Ed Crosse, was a member of the Committee responsible for the new procedures.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.