First reported case on the shorter trials scheme

On 1 October 2015, two pilot schemes where launched in Rolls Building courts: the shorter trials scheme (STS) and the flexible trials scheme (FTS), both of which provide for expedited procedures to cut down the costs and delay of pursuing commercial disputes in the High Courts in London.

In a reported decision of Mr Justice Birss (Family Mosaic Home Ownership Ltd v Peer Real Estate Ltd [2016] EWHC 257 (Ch)), helpful guidance has been given regarding the scope and application of the STS to business cases. The decision has clarified the question of whether the court has jurisdiction to transfer a pending case into the scheme, and the nature of cases that are likely to be suitable for the STS. It also provides some practical guidance on when and how cases can be transferred in.

Background to the STS

The STS is governed by practice direction (PD)51N and applies to all courts in the Rolls Building, with the exception of the Intellectual Property Enterprise Court. The STS is intended to achieve tight control of the litigation process by the court, to resolve disputes on a commercial timescale (judgment within a year from issue of proceedings). Cases will be managed by a docketed judge with a trial date fixed for no more than eight months after the case management conference and with judgment six weeks thereafter. The maximum length of trial will be four days, including reading time. Costs budgeting is not applicable; instead, costs will be assessed summarily.

As noted by Birss J in his judgment: 'The initiative as a whole also seeks to foster a change in litigation culture: a recognition that comprehensive disclosure and a full, oral trial is often unnecessary for justice to be achieved. That in turn should improve access to justice by producing significant savings in the time and cost of litigation'.

The case concerned a claim for specific performance of a contract to sell a property in London and raised the following issues in relation to the STS.

1. Can an existing case be transferred into the STS?

Cases can be started in the STS by issuing them in the relevant court and marking the claim form appropriately (PD 51N paragraphs 2.8-2.9). PD 51N, paragraphs 2.10-2.11, deal with the situation where a defendant wishes to apply to transfer the case out. PD 51N does not, however, state in terms that the court can transfer an existing case into the STS.

Birss J clarified that the court has the power not only to transfer cases out but also to transfer pending cases into the scheme. This power is in line with the overriding objective to deal with cases justly and at proportionate cost (Civil Procedure Rule r1.19(1)) and the court's power to take any step or make any order for the purpose of managing the case and furthering the overriding objective (CPR rule 3.1(2) (m)). In addition, Birss J held that such a power is implicit when construing PD 51N as a whole.

2. Did the case in question fall within the class of cases appropriate for the STS?

The STS is intended for all 'business' cases within the Rolls Building Courts subject to the exceptions listed in paragraphs 2.2-2.3 of PD 51N, which include cases involving:

• Allegations of dishonesty;

• Extensive disclosure or reliance upon extensive witness or expert evidence; or

• Multiple issues and multiple parties.

Birss J clarified that the term 'business' will cover a wide range of cases heard in the Chancery Division (and other Rolls Building Courts) and that this particular case illustrated the wide scope of the term, namely a commercial property dispute over whether or not a planning condition precedent had been waived. The claim raised issues of estoppel, detrimental reliance, and contractual termination. Importantly, both parties confirmed that neither extensive disclosure nor extensive witness or expert evidence would be needed. Instead, the case involved a relatively self-contained question of whether the defendant had agreed to waive the condition precedent or was estopped from relying on it. The parties further estimated that the length of the trial would be less than four days.

On these points, Birss J determined that the case was suitable for the STS and that a transfer was in accordance with the overriding objective.

Unusually, this decision arose out of an application made with the consent of both parties, but it will apply equally to cases where one, or indeed both, of the parties do not agree that the case is suitable for the STS.

The fact that the court went to the trouble of producing a reasoned judgment (with guidance on the operation of the STS) is indicative of the judicial endorsement of the scheme and the court's desire to ensure that the STS (and FTS) are a success. Clearly, if suitable business cases are capable of being fairly resolved within just a year of issue, this could go a long way towards cutting down the perceived time and expense of pursuing such claims in London.

Ed Crosse is a disputes partner at Simmons & Simmons and committee member of the LSLA

@SimmonsLLP

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