Litigation 'lite': Shorter and flexible trial schemes

On 1 October 2015 ?the shorter and flexible trials pilot schemes were launched in the Rolls Building of the High Court in London. Both are governed by the new practice direction 51N.

The two schemes share a common purpose: to allow parties to opt for a ‘lite’ form ?of multi-track procedure in commercial disputes that are ?not heavily reliant on documents or witness evidence, with the aim of securing a decision more quickly and cheaply than ?would otherwise be the case. The schemes envisage much being done on paper that ?would normally be dealt with orally. However, there are also important differences in the ?way they work.

To some extent, how the schemes differ is apparent from their names. In the shorter trials scheme (STS), the emphasis is ?on getting through the entire proceedings as quickly ?as possible, with the (maximum four-day) trial taking place ?eight months after the case management conference (CMC). Judgment is delivered within ?six weeks of the trial, and costs are assessed summarily, rather than in separate proceedings (see paragraphs 2.38(e), ?2.55, and 2.59 of the practice direction). Appeals should also be dealt with more swiftly (see paragraph 2.60).

The flexible trials scheme (FTS), on the other hand, lays down no specific timetable for proceedings as a whole. Instead, a skeletal default procedure ?is set out, covering little more ?than disclosure, witnesses, and expert evidence (paragraph 3.9). ?As the name of the scheme suggests, parties are expected to adapt and extend this to arrive at a more detailed procedure that ?is best suited to their needs. 

These are the obvious differences, but there are ?others that are also important ?in practice. 

For example, the FTS is strictly voluntary. The parties either agree before the first CMC to ?use the scheme, or they do not (see paragraph 3.6). The court does not have the power to force any party to use it. In the STS, ?the court does have that power, at least where one of them is willing (see paragraphs 2.10–2.15 of the practice direction ?and paragraph 7 of the ‘Short and Flexible Trials Procedures Guide’). 

Another key difference is that if both parties agree to use the STS from the outset, it may affect procedure from the pre-action stage onwards. This contrasts with the FTS, which can only affect procedure from the disclosure stage onwards.

In addition, the STS simplifies multi-track procedure in a number of ways:

• First, pre-action procedure ?is truncated and can sometimes be dispensed ?with altogether in ‘a case of urgency’ or where there is some other ‘good reason’ for issuing proceedings straight away (see paragraph 2.17); 

• Second, there is no costs management unless both parties agree – a major advantage for costs management sceptics or those who think it unsuited ?to their particular case, even though the claim may fall below the current exemption threshold of £10m (see paragraph 2.56); and 

• Third, outside of the ?CMC, applications are generally dealt with on ?paper, or possibly by telephone, rather than ?in a full oral hearing ?(see paragraph 2.48(e)). 

Disclosure and searches

Disclosure in both the STS ?and the FTS is streamlined so ?that parties are not obliged to conduct a general search for documents. The STS follows ?the second option in Lord Justice Jackson’s disclosure ‘menu’, requiring parties only to disclose the documents they rely on and then to respond to requests or orders for specific disclosure (see paragraphs 2.39–2.). By contrast, the FTS obliges parties to perform ‘standard disclosure’, but only ?in respect of documents ‘actually known’ to fall within the relevant categories, i.e. documents that support or adversely affect a party’s case, or which a party is required to disclose by a relevant practice direction (paragraph 3.9(a) and Civil Procedure Rule (CPR) 31.5(6)). 

Thereafter, parties may ?apply for specific disclosure, ?as in the STS. However, in both schemes, the rules make it clear that specific disclosure will be ordered only to the extent ‘necessary’, bearing in mind the documents’ likely ‘probative value’ and the difficulty of performing the required search.

Suitable applicants

It is not certain how much take-up there will be for either scheme. Some disputes are clearly not suited to the STS ?(see paragraph 2.3), and in appropriate cases parties can already issue proceedings under CPR part 8 (for disputes not turning on substantial questions of fact) or apply for summary judgment under CPR part 24. ?On the other hand, some may be attracted to the STS where time is short or they simply do not want the burdens of full pre-action procedure, costs management, ?or large-scale disclosure. The FTS may perhaps appeal to parties seeking arbitration-style flexibility, without opting out of court proceedings altogether.

Both schemes run for two years, until September 2017, at which point one or both of them may be incorporated into the main body of the CPR. 

Whiston Bristow, pictured, is a partner, and Giles Hutt is a litigation professional support lawyer in the financial services litigation team at Hogan Lovells, London @HoganLovells www.hoganlovells.com