A new edition of the Admiralty & Commercial Courts Guide was published in May 2009. It introduces changes to practice and procedure in the Commercial Court, designed to implement many of the recommendations made by the long trials working party. In addition, the Guide has also been amended to incorporate the new electronic filing scheme introduced in the Commercial Court in April this year.

The recommendations made by the working party were adopted by the Commercial Court Users' Committee and published in a report in late 2007. They were trialled in a pilot scheme which ran from February 2008. Feedback was then sought from court users in late 2008. The Guide has now been amended following that feedback and the Commercial Court judges' experience of the pilot. Some of the working party's recommendations, such as those relating to client accountability and responsibility, have not been incorporated into the amended Guide.

Key changes

The key changes to practice and procedure in the Commercial Court introduced in the amended Guide, together with some of the recommendations which have not been adopted, are summarised below:

Pre-action protocols

  • The Practice Direction on Protocols applies to actions in the Commercial Court and should usually be observed, although it is sometimes necessary or proper to start proceedings without following the procedure, for example, where delay may prompt forum shopping.
  • Parties are not required to engage in elaborate or expensive pre-action procedures.  
  • The letter of claim and response should be concise and only essential documents need be supplied. The prospective defendant should generally respond within one month.  

Statements of case and list of issues

  • Statements of case should be limited in length to 25 pages unless the court gives permission for a longer document. Replies should be pleaded only where necessary. A suggestion by the working party that defendants should respond by annotating the statement of case was not adopted.
  • After service of the defence (and any reply) the parties should produce a list of the key issues (the list of issues). There is no requirement that the list of issues should be limited to 10 pages as recommended by the working party.  
  • Parties should spend as little time as possible in drafting the list of issues and keep in mind the need to limit costs. In the feedback received from the pilot, the list of issues was one of the main areas of concern. While some found it useful in helping to define the issues, others found that excessive time, and therefore costs, were spent trying to agree it with the other side. This is something the court is keen to keep to a minimum hence the specific reference to the need to limit costs.  
  • The list of issues will be used as a case management tool. It will be used amongst other things to determine the scope of disclosure, factual and expert evidence. During the pilot there was some confusion as to its importance. However, the amended Guide makes it clear that it is not intended to supersede the pleadings.  

Judicial resource management

  • The previous "two judge team" for cases which are exceptional in size or complexity is replaced by a single designated judge. This is a new provision as the working party had recommended that the two judge system remained.
  • The designated judge will preside over case management conferences (CMCs) and other hearings other than applications for an interim payment.  

Case management

  • CMCs must be attended by a legal representative familiar with the case and with the authority to deal with the issues that are likely to arise.
  • There are no specific provisions for the judge to give an indication as to the merits of particular issues, if appropriate, as recommended by the working party.  

Disclosure

  • Before the first CMC, the parties must serve disclosure schedules. These will be used to determine the extent of disclosure and any proper limits.

Witness statements

  • It will seldom be necessary to exhibit documents to statements.
  • Usually statements should follow a chronological sequence and indicate to which issue in the list of issues the passage relates. The working party had recommended that statements were drafted by reference to the list of issues, but the pilot showed this to be difficult and unpopular.  
  • There are no specific provisions on the length of witness statements or for the court to dispense with them in appropriate cases as recommended by the working party.  

Expert witnesses

  • The parties will be expected to identify to which issue or issues in the list of issues the proposed expert evidence relates when seeking permission to call an expert.
  • The court may limit the length of an expert report.  
  • Expert reports must be limited to relevant issues in the list of issues.  
  • There is no requirement for reports to be exchanged sequentially as recommended by the working party, although there was previously and still is provision for this to be done in "appropriate cases".  

Trial

  • The court may decide the order in which issues are to be tried by reference to the list of issues.
  • Apart from specific documents, trial bundles should include only necessary documents.  
  • Skeleton arguments should be limited to 50 pages so far as possible. If this is not possible it should be discussed at the pre-trial review or in correspondence.  
  • The court may restrict evidence or submissions to comply with the trial timetable.  
  • The working party's recommendations of limiting trials to 13 weeks, opening speeches to 2 days, closing written arguments to 1 page and oral closing arguments to 2 days have not been implemented.  

Costs

  • Summary assessment will generally be given where total costs claimed are no more than £100,000 rather than the £250,000 recommended by the working party. However, the parties should always be prepared for the court to assess summarily, even where the costs exceed this amount. The feedback during the pilot indicated that the increase to £250,000 was not popular with practitioners.
  • Active consideration will generally be given to making a payment on account if costs are not assessed summarily.  

Electronic communications

  • A new appendix sets out details of the electronic working pilot scheme which commenced on 1 April 2009 and details the procedure to be followed where claims are filed electronically.

Comment

Some of the feedback received following the pilot scheme was that the recommendations had made litigation in the Commercial Court more, not less, expensive. For example, some court users found that additional time was required to make pleadings shorter and to draft witness statements with reference to the list of issues. While the amended Guide still requires more focus on the key issues in the case, it is hoped that the clarification given about the status of the list of issues, and that parties should spend as little time as possible in drafting it, will help to reduce some of these costs. Interestingly, Lord Justice Jackson in his preliminary report on civil litigation costs has not been persuaded that lists of issues should be introduced outside of the Commercial Court.

It remains to be seen whether the recommendations to be made by Lord Justice Jackson in his final report, due at the end of the year, will impact upon Commercial Court procedure, notwithstanding the report of the working party and the amended Guide. Jackson LJ states in his preliminary report that his recommendations must encompass all civil courts, including the Commercial Court, whilst recognising at the same time that one size does not fit all. For further details about Lord Justice Jackson's review of costs click here for our series of e-bulletins on his interim report.