The court's new flexible dispute resolution options

In a growing international forum, the English courts are taking steps to ensure that London remains an attractive venue for litigation.

On 1 October 2015, new rules relating to the determination of business disputes in the Rolls Building came into force.
The changes include two pilot schemes, the shorter trial scheme (STS) and the flexible Trial Scheme (FTS), as well as
the new financial list (FL).

The shorter and flexible schemes are designed to 'achieve shorter and earlier trials for business related litigation at a reasonable and proportionate cost', while the FL was created to shift complex financial disputes onto a specialist list to be determined by an experienced judge. If successful, these developments could offer attractive alternatives for commercial clients.

The FL creates a specialised process to handle complex or high-value financial cases. It caters for financial claims above £50m or cases that raise issues concerning both domestic and international financial markets.

The procedure will largely follow that of the commercial court guide cases. Additionally, a financial markets test case scheme is being piloted to establish precedents where there is no existing authority. Issues of general importance in financial markets which require immediately relevant English law guidance may be heard in the FL before a dispute has arisen.

Meanwhile, both the STS
and FTS offer a more efficient, cost- effective, and expedited route to trial for relatively simple business disputes where significant disclosure or witness evidence is not required. Parties can opt in or out of the STS, or the court may allocate a claim
to the scheme, while the FTS is purely voluntary.

The STS intends 'dispute resolution on a commercial timescale', by fixing a maximum four-day trial some eight months after the case management conference, and states judgment should be obtained six weeks thereafter. The accelerated timetable is mainly achieved through truncating pre-action protocols, dealing with applications on paper or by telephone, and limiting statements of case and witness evidence to 20 and 25 pages respectively. Critically, the STS adopts arbitration-style disclosure whereby parties disclose documents they rely upon or which the other party specifically requests.

Under the FTS, parties
may agree to adapt the trial procedure (pre-trial disclosure, witness and expert evidence, and submissions at trial) to
suit their particular needs.
The parties are encouraged
to limit disclosure and oral evidence to the minimum necessary to resolve the
dispute fairly.

All three schemes use a single designated or 'docketed' judge to provide continuity and familiarity with the case, issues, and parties, and to improve claim management. The FL judge - with experience of the relevant markets, products, and case law - should also provide a technically resilient judgment.

Junior litigators should be aware of the increased flexibility and specialised processes available to resolve their client's dispute as the English courts adapt to an increasingly globalised and competitive market, where businesses want efficiently delivered and robust decisions.

Traditionally, key benefits of arbitration were perceived to be confidentiality, flexibility, speed, reduced costs, and the right to select an arbitrator. It will be interesting therefore to see the uptake of these schemes as a viable challenge.

Sarah Charig is an associate at Norton Rose Fulbright and a member of the Junior London Solicitors Litigation Association www.lsla.co.uk/junior www.nortonrosefulbright.com