August 11, 2015

Streamlining commercial litigation

Overtime and holiday pay

Shorter trials

The shorter trials pilot scheme will be available for cases which are relatively straightforward in terms of the issues in dispute and where extensive evidence from witnesses and experts is unnecessary. It will not be available for cases with more than two parties or if the trial is expected to last more than four days.

The aim of the scheme is to see a claim progress from issue to trial within 12 months, saving the parties and the courts significant time and cost.

This will be achieved by cutting down the time for responding to claims and the overall directions timetable. The court will also deal with interim applications on paper instead of at oral hearings, which can be expensive and disruptive. The courts also plan to assign a single judge to the claim from start to finish, a practice which has already been adopted in the Technology and Construction Court.

Flexible trials

Similarly, the flexible trials pilot scheme is aimed at keeping things simple by limiting the length of witness statements and expert reports, cutting down oral submissions and encouraging parties to work more collaboratively to narrow the issues in dispute and agree between them on how to manage their case in a cost effective manner. Again, a single designated judge will be actively involved in managing the case throughout the process.

The flexible trials process is to be available to any commercial dispute where both parties are happy to participate in the pilot scheme.

What does this mean for commercial dispute resolution?

Like all court reforms of the last few years, this is clearly another measure aimed at minimising costs for everyone involved in litigation. In our experience, the average timeframe from issue to trial is usually in excess of 18 months and many issued claims never reach trial at all because they are settled before getting that far. Of course, the length of a case can be extended because the parties have stayed the proceedings in an attempt to settle their differences and have only gone on to trial when those attempts have been unsuccessful. The courts will continue to encourage parties to consider a settlement at every stage of their claim.

Designated judges will reduce the time spent reading-in before hearings and generally improve their familiarity with cases. However, if the use of designated judges is to become widely implemented across the court system, then allocating cases and listing them for hearings may become a logistical headache.

Limited disclosure is a great idea in theory, but it is likely to be very difficult in practice for parties to agree how to limit their disclosure without spending a lot of time and cost arguing about it. Parties have been encouraged to try this since the disclosure rules changed in 2012 and many parties still opt for the safe and familiar option of “standard disclosure”.

The pilot schemes are another step in the right direction towards reform of the system, looking to become a more modern and commercial process. If the cost of issuing a claim under the shorter or flexible trials systems is cheaper than the usual court fee (which can be as much as 10% of the amount in dispute) then parties may be encouraged to make use of the schemes.

The pilot scheme will operate only for eligible cases issued in London’s High Courts but, if successful, could be rolled out nationally.

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