Litigation can be expensive and time-consuming. To help achieve earlier trials at a reasonable and proportionate cost, the courts in part of the High Court (the Rolls Building) have been taking part in two pilot schemes running from October 2015 to September 2018, the Shorter Trials Scheme and the Flexible Trials Scheme. We discuss them both below.
The Shorter Trial Scheme (“STS”)
The STS aims for a faster timeline to trial. The scheme aims to have cases heard within 10 months of the date of issue of proceedings and to have judgment handed down within six weeks of the hearing. The scheme is not mandatory, though the Court can encourage parties to opt into the STS.
In order to cut down the length of time it would normally take to arrive at trial, the STS employs a number of different mechanisms to ensure efficiency. We have summarised some of these below:1
- Docketed judges: cases managed and heard before the same docketed judges to ensure greater continuity and efficiency of the management of the case.
- Shortened pleadings: all pleadings limited to 20 pages and served with the core documents relied upon. In addition, timelines for exchange of pleadings has been shortened (e.g. the Defence must be served within 28 days of service of the Claim Form and Particulars of Claim).
- Shortened evidence: fact and expert evidence in writing and limited in length. Any oral evidence limited to specific issues directed by the Court at the Case Management Conference (CMC) or subsequently.
- Early Case Management Conference: the claimant must take steps to fix a CMC within approximately 12 weeks of acknowledgment of service.
- Limited disclosure: standard disclosure is dispensed with, meaning no disclosure reports need to be prepared. Instead, disclosure is limited to documents relied upon and/or requested by the other party. Disclosure must be exchanged within 14 days of the CMC.
- Robust timelines: strict adherence to the timeline to trial, with extensions only permitted in a limited few circumstances.
- Costs budgeting: not applied. Instead, costs of the case are assessed summarily by the judge.
The STS is intended for commercial and business cases that should take no longer than four days to be heard. Due to the expedited nature of the scheme this means that certain cases will not be suitable to be heard under the STS. For example, cases which are likely to require extensive disclosure or reliance upon extensive witness or expert evidence.2 In addition, when deciding when applications for appeal will be considered and when appeals will be listed, the Court of Appeal can take into account the fact that a case was heard in the STS as a result of the parties’ desire for expedition.
The Flexible Trial Scheme (“FTS”)
The FTS aims to achieve a more streamlined trial procedure compared to the full trial procedure, by adopting flexible case management procedures (subject to the parties’ agreement before the CMC). The scheme encourages the parties to modify the process by consent so that the proceedings are as speedy and simple as the case merits.
Similar to the STS, the scheme provides for limited disclosure and to confine oral evidence and cross-examination at trial to a minimum, thereby reducing costs and expediting the trial timeline. However, unlike the STS, guidance is silent on which cases may or may not be suitable to be heard under the FTS. Further, the guidance is silent on estimated trial dates but this is probably because it is difficult to provide a trial date estimate if the parties have the flexibility to modify the rules of the scheme.
The FTS procedures can be deviated from by the parties’ agreement. Indeed, the parties can agree to adopt a different procedure if proposed before the CMC and approved by the Court, which has the final say.
How have the schemes been received?
Few parties have opted to use these schemes. Only a small number of cases have been issued or transferred to the STS and fewer have used the FTS. It is not clear whether this slow uptake is due to lack of public awareness, caution of litigants, or other factors. However, judicial support has not been dampened. For example, at the 2016 Commercial Litigation Association annual conference Mr Justice Blair expressed his optimism in the schemes and urged lawyers and their clients to consider using the schemes3. Likewise, the Lord Chief Justice (Lord Thomas of Cwmgiedd) expressed support for the schemes and how they can help the business community.4
What happens next?
Both pilot schemes have been extended to now run to September 2018, presumably to provide more time for the schemes to develop and gather user-feedback. At this stage, it is not clear whether the schemes will be expanded to all sections of the High Court.