Cutting down costs 'and delays in litigation

On 1 October 2015, ?two pilot schemes were launched in ?Rolls Building courts (the Commercial Court, the Technology and Construction Court, the Chancery and Queen’s Bench Divisions, and the London Mercantile Court): the shorter trials scheme and the flexible trials scheme. 

The schemes, which will be governed by the new practice direction 51N, provide for expedited procedures to cut down the costs and delay of pursuing commercial disputes in the High Court in London.

Shorter trials scheme

The shorter trials scheme involves streamlined directions leading to judgment within a year of issue of proceedings. ?The key elements include:

• All cases will be managed and tried by a designated (docketed) judge only;

• The scope of 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;

• 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);

• Pre-action protocols will not apply, but a letter of claim should be sent notifying the defendant, save in cases ?of urgency;

• Statements of case should?be no more than 20 pages long and should attach ?core documents; 

• 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 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;

• 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;

• The parties may agree to a single 14-day extension of time for the defence and a single seven-day extension to any other date set by the rules or by directions; 

• The trial will be before the designated judge and, where possible, will take place not more than eight months after the CMC. ?Trials shall be limited to ?no more than four days; 

• The court will endeavour ?to hand down judgment within six weeks of the trial ?or (if later) final written submissions; and

• Costs budgets will not be used, unless 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 (i.e. pre-judgment) to allow for summary assessment to take place after judgment has been handed down.

Flexible trials scheme

The flexible trials scheme (which operates as an alternative to the above) involves the adoption of more flexible case management procedures where parties so agree, resulting in a more simplified and expedited procedure than the full trial procedure currently provided for under the Civil Procedure Rules.

Subject to the overriding discretion of the court, the default flexible trials scheme 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, for example, by having standard disclosure on identified issues and wider oral evidence.

Given the emphasis on flexibility, the practice direction for the flexible trials scheme simply addresses the elements discussed above.

Some commercial cases will plainly not be suitable for either scheme, for example, where the issues are factually complex and/or there is a need for standard disclosure. 

For appropriate cases, however, the schemes offer ?the chance of securing 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.

Ed Crosse is disputes partner at Simmons & Simmons and an LSLA committee member appointed as the solicitor representative to sit on the shorter and flexible trials committee @LSLA1 www.lsla.co.uk

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