The Commercial Court has published the Report and Recommendations of the Working Party set up to consider the management of heavy and complex litigation. On 28 November the report and recommendations were adopted by the Commercial Court Users' Committee and will be introduced in a pilot scheme from 1 February to the end of July 2008.
The main changes, summarised below, will (if vigorously implemented) have a big impact on all cases in the Commercial Court, but particularly on heavyweight litigation. In particular, more hands on case management, focussing on a new style, judicially settled, list of issues, should mean that cases will be run more efficiently (although possibly at the price of even more frontloading of costs). Success will also depend on whether there are sufficient judicial resources and the necessary technology available to implement the changes properly.
Commercial Court Symposium
A Commercial Court Symposium took place on 30 October 2006, chaired by Mr Justice David Steel, to look at the way so called 'supercases' were run. It was attended by approximately 100 invited delegates including judges, lawyers and client users of the Commercial Court. Formal presentations were followed by questions and a wide-ranging discussion. Despite inevitable differences in views and emphasis, there was wide support for several important points which emerged including the allocation of cases to specific judges, vigorous exercise of case management powers and control of disclosure, in particular electronic disclosure. The Working Party was set up to take the suggestions forward.
Working party review
The Working Party reviewed each of the stages of litigation and how it is managed. It based its study on conclusions from the Symposium that, although the adversarial system and the basic elements of the current system (statements of case, disclosure and exchange of witness statements) were suitable for heavy and complex cases, major modifications were required in the way they were used both pre- and during the trial of these cases. It declined to define “heavy and complex” cases which may depend on the amount at stake, numbers of parties involved, length of trial and number of and complexity of legal or technical issues. Instead the Working Party found that many of its recommendations could also be used with advantage in shorter and less complex cases. It concluded that the parties and the court will have to be flexible and “mould the procedures to the needs of the individual case”.
The Working Party noted that despite existing wide-ranging case management powers in the Civil Procedure Rules (CPR) and suitable procedures for heavy and complex cases in the Admiralty & Commercial Courts Guide (the Guide), in many cases either the parties or the judges or both are not enforcing them with sufficient rigour. It concluded that a re-education programme was needed. It has been suggested that another Symposium be held next summer as part of that process.
Main recommendations for change
The main conclusions of the Working Party and proposals for change are as follows:
- To keep the burden and time of pre-action protocols within limits, particularly in large cases, parties should comply with the minimum expectations of the existing pre-action protocol regimes.
- The letter of claim and response should be concise and generally there would be no need for parties to appoint experts at this stage.
- The prospective defendant should respond generally within one month, and no more than three months, from the letter of claim.
Statements of case and list of issues
- Statements of case should not exceed 25 pages without permission of the court and should include a brief summary. Replies should be pleaded only where necessary.
- At the first Case Management Conference (CMC) a list of issues of five pages or less will be judicially settled and statements of case will thereafter be of secondary importance.
- Once settled the list of issues will be a court document and a key procedural tool throughout the case. It will regulate disclosure, witness statements and expert reports.
Judicial resource management
- The current “two judge team” for suitable heavy and complex cases should remain and the obligation will be on the claimant to inform the court at the close of pleadings that it considers it an appropriate case for two judges to be assigned.
- One or other of the two judge team should be available to deal with all CMCs, interim matters and the trial. The parties in a heavy and complex case should also be able to contact one of the two judges informally so as to deal with urgent matters or to seek guidance on procedural points.
Management of the pre-trial timetable
- The pre-trial timetable should be realistic - which is likely to mean not all pre-trial dates nor the trial can be fixed at the first CMC in large cases.
- Parties should give careful estimates for each piece of work, with sensible contingencies built in, and be able to explain how the estimates were made.
Client accountability and responsibility
- Senior client representatives should sign a statement of truth not only at the outset but shortly before trial verifying the statement of case.
- At appropriate stages, such as at the first CMC and after exchange of expert or witness reports, senior client representatives should also sign a statement indicating whether ADR has been considered internally and with the other side.
- Those client representatives may also be required by the judge to be present in court if it will assist in case management.
- The parties should identify in a 'shopping list' the disclosure they seek in advance of a CMC by reference to the list of issues.
- The court’s approach to disclosure should be rigorous.
- Witness statements must be as short as possible and be drafted by reference to the issues in the list of issues. They should not have bundles of documents exhibited.
- The court should in appropriate cases impose a limit on the length of witness statements, or possibly dispense with them and order statements of the 'gist' of evidence and/or allow examination in chief at the trial.
- The list of issues should identify expert issues at the outset or a later stage if that isn't possible. The expert reports should be framed by reference to those issues.
- Expert reports should normally be exchanged sequentially.
- The court should always consider limiting the length of expert reports.
Summary judgment/Striking out
- The current test for summary judgment/strike out will not change but there should be a more flexible approach to costs orders where an application fails.
- The list of issues should be used to identify issues that might be appropriate for summary judgment/strike out/hearing of preliminary issues.
- Where there is a likelihood of a large number of interim appeals, a Lord Justice of Appeal, preferably with Commercial Court experience, should be earmarked to hear them.
- Appeals from strike outs and summary judgments should be heard speedily.
Indications from judges as to the merits
- Judges should be encouraged to give provisional views on the merits of particular issues if appropriate at CMCs, summary judgment/strike out applications and at trial, provided it is with the parties' consent and with the judge making it clear that the view is provisional.
Management of trials
- No two party trials should ordinarily be listed for more than 13 weeks.
- Outline opening arguments in a two party case should not normally exceed 50 pages and should be structured in accordance with the list of issues. No opening speeches should ordinarily be estimated to exceed two days.
- Time limits for examination of witnesses should be set whenever appropriate.
- A page length should be imposed on written closing arguments and oral closing arguments should not exceed two days.
Costs and hearing fees
- The Working Party strongly opposes the government’s proposal of daily court fees which it considers will deter litigation in the Commercial Court in favour of litigation overseas or arbitration.
- The court should make summary assessments in all instances where the total costs claimed are £250,000 or less (the limit is currently £100,000), and should also make more use of payments on account and more use of costs to discourage parties from behaving unreasonably.
- Costs capping would not be appropriate in most cases unless one party is behaving unreasonable or disproportionately.
Use of technology
- More consideration should be given at an early stage of the case of the scope for using technology, including specifically at the trial.
- A specialist working party should be set up to develop proposals on how trials can become paperless when the Commercial Court moves to the new business court in the Rolls Building.