A new pilot scheme seeks to take some of the time-saving procedures in the Intellectual Property Enterprise Court (IPEC) and apply them to the High Court. London has two courts that deal with actions on patents and other IP rights. The IPEC is the junior one. It started life as the Patents County Court in 1990 and more recently was renamed and revitalized. The senior court is the Patents Court, part of the Chancery Division of the High Court of Justice, and therefore a pillar of the traditional courts system.
The IPEC deals with cases in which the trial has a maximum length of two days. Damages recovery is limited to £500,000, and there is a cap on the recovery of legal costs from the losing party. This costs cap is a maximum of £50,000. There are no such limits in the High Court.
The recent reforms of the IPEC also include procedures giving the judge a greater measure of control than previously. They are generally considered to have been a success. The court has plenty of customers, who by and large seem happy with the services provided.
The High Court is somewhat at the opposite extreme, in that there are no limits on trial length, and the parties largely dictate the speed and length of cases. Although there have also been reforms, some of the procedures can in this day and age seem clunky. The amount of evidence put before the court is largely in the hands of the parties. Cases tend to be long and can turn out more expensive than expected.
There have been murmurings recently for some of the IPEC-type procedures to be airlifted into the High Court. This has now happened, with the establishment of a “Shorter Trials Scheme” (STS) in the High Court. It has been running since October 2015. It is a pilot scheme, set to last for two years although if it is popular then it is likely to be extended in some shape or form. The lesson from the IPEC is that with proper case management, actions which previously took many days at trial can be disposed of in one or two days.
In light of the fact that the High Court has an unlimited jurisdiction, the upper limit for trials in the STS has been enlarged to four days (including pre-reading time for the judge). There is no costs cap. The other new procedures are largely similar to those in the IPEC but with some tweaks. The main features are:
- The judge handling the Case Management Conference (CMC) will normally be the judge hearing the case at trial.
- Parties are encouraged to have applications dealt with on paper instead of at hearings.
- Disclosure of documents is limited. Initially the parties need only disclose those documents on which they rely. There is no “standard disclosure” like in a mainstream action. If a party thinks that the other party has relevant documents from the past that will help its case, and the other party does not disgorge them, it will have to make an application for specific disclosure.
- As in the IPEC, the judge will look at limiting the oral evidence at trial to identified issues or topics.
- The trial should take place within eight months of the CMC, and the judge will give a date for delivery of the judgment, within six weeks of the trial. This is quicker than the general run of cases in the High Court. The quid pro quo for jumping the queue is that STS cases takes up less resource than regular cases.
- Costs payable to the winner will be summarily assessed if not agreed. This will involve the parties exchanging schedules of costs after the trial, and at the post-trial hearing the judge will assess the relevant costs summarily. This eliminates the possibility of satellite litigation about costs.
- There is no requirement for costs budgeting during the pre-trial period. The costs management procedures currently in place are widely perceived as a wasteful box- ticking exercise. With the STS, schedules of costs are needed only after the trial. The costs landscape under the STS is low maintenance.
The IPEC’s costs cap can be an attractive feature for the level of cases which that court deals with, but it can be a disincentive for some parties. Rather than the High Court being the only alternative, there is now a sort of halfway house.
This new scheme does not run only in the Patents Court. It applies to other specialised lists including the Chancery Division as a whole and the Commercial Court. Whether it is a success largely depends on the amount of use that will be made of it. Claimants can choose to designate a case as being within the scheme. The court has power to transfer a case into the scheme. The court can do this even if the parties do not propose it.
Our judges are well aware that in several areas of law, particularly patent cases, there is competition with jurisdictions elsewhere. In patent cases the main competitor tends to be Germany. This shorter trials procedure goes a long way towards meeting the concerns that many potential litigants have in England and Wales. In principle, it should be applicable to quite a wide range of cases. It has obvious attractions, but will wither on the vine unless it is used.
There is also a second pilot scheme, called the Flexible Trial Scheme (FTS). Unlike the STS, where the emphasis is on judge control, the FTS allows the parties to adapt trial procedures to suit their own particular case. The relevant model is arbitration, the parties agreeing on the procedures subject to overriding court control.