Businesses frequently forgo pursuing valid claims because the litigation process can be costly, time-consuming and cumbersome. Gwendoline Davies explains another approach to litigation and asks whether the ‘Shorter and Flexible Trials’ schemes might be a solution in some cases.

Has the future of effective dispute resolution arrived?

It might be a bold statement, and it is certainly early days, but it is possible that the new Shorter and Flexible Trials schemes (currently being piloted until 30 September 2017) could re-shape the future of effective dispute resolution for many businesses.

The schemes have been developed in response to feedback that clients want cheaper, faster, more flexible litigation and that businesses, which often choose to write off debts or absorb losses rather than pursue a court claim, might seek justice more readily if the litigation process were not so off-putting. In particular, commercial clients may, in many cases, prefer slightly more ‘rough and ready justice’ if it means that a clear resolution to their dispute is achieved quickly and cost-effectively.

Shorter Trials scheme

Key aspects of the Shorter Trials scheme include:

  • ‘Docketed’ case management. That means that just one judge oversees the full case, from issue of the claim and the initial case management conference (CMC), to and including the trial.
  • A significantly streamlined procedure, which will be actively court-led from the CMC.
  • The trial will be within 8 months of the CMC.
  • The trial will last no more than 4 days unless there is some late, unexpected, exceptional change.
  • Judgment will be given within 6 weeks of trial.
  • There is no cost budgeting!

Flexible Trials Scheme

Key aspects of the Flexible Trials scheme include:

  • The parties are in control. The parties agree to adapt trial procedure to suit their own case.
  • The parties can ask the court to determine issues on the basis of written evidence and submissions, rather than hold a trial in person.
  • The parties may be able to agree to no costs budgeting.

WM Comment

Many within the legal profession believe that that traditional ‘big case’ litigation is unlikely to be sustainable for some businesses in the long term, particularly bearing in mind the currently climate of rising fees and budget cuts within the justice system. It is even possible that, for many but the biggest global corporations and the most complex, high value cases, the Shorter and Flexible Trial schemes are the way litigation is headed.

For now, it is important to note that there may be some trade off between time and cost on the one hand and the quality of the process and decision making on the other. As such, whilst the Shorter and Flexible Trial schemes may be viewed by many as the holy grail of dispute resolution, they are unlikely to be appropriate in every case.