The length and cost of the litigation process has been at the forefront of the minds of High Court judges for some time, perhaps to some extent because the English civil justice system is facing increased competition from other jurisdictions (as a forum for the resolution of international disputes) and ajudication (for construction disputes). Indeed, many High Court judges have for some time been eager to foster a change in litigation culture, which recognises that comprehensive disclosure, extensive witness or expert evidence and a full, oral trial on all issues may not be necessary in all commercial cases.
On 1 October 2015,two pilot schemes came into force, which allow for shorter and more flexible procedures to be adopted in claims issued in the Rolls Building courts, including the Commercial Court, the Chancery Division and the TCC Court. The schemes will run for two years and it is hoped that the procedures may enable parties to achieve significant savings in the time and cost of litigation.
The Shorter Trial procedure
The aim is to resolve disputes which do not require extensive disclosure, witness or expert evidence on a commercial timescale and enable them to reach trial within approximately 10 months of the issue of proceedings. The maximum length of trial will be four days. In addition:
- There will be an assigned judge.
- Pre-action protocols will not apply automatically (but a letter of claim should usually be sent and the defendant should respond within 14 days).
- Disclosure will be limited to documents relied upon and documents requested by the other party and either agreed or ordered. Unless otherwise ordered, factual and expert evidence will be in writing and limited in length.
- Costs budgeting will not apply, unless the parties otherwise agree.
The Flexible Trial procedure
The Flexible Procedure essentially enables parties, by agreement, to adapt trial procedure to suit their particular case with a view to obtaining a more simplified and expedited trial. Whilst the court will seek to respect that agreement, it retains ultimate control over the procedure to be adopted.
These schemes are not revolutionary and some High Court judges, particularly in the TCC, have already started to use their case management powers to implement shorter and more flexible trial procedures in certain cases, which they consider to be more proportionate and cost effective. It therefore remains to be seen exactly what impact the new schemes will have.
Whilst the shorter procedure may indeed achieve its aim of saving parties time and money, from a tactical perspective, it may also enable a well-prepared claimant to put a defendant under significant pressure, particularly where a defendant's main aim appears to be to delay the litigation. This may in turn encourage settlements at an earlier stage. However, it may also lead to defendants applying to transfer cases out of the shorter scheme on the ground that they have been "ambushed".
Equally, claimants looking for a smoking gun or who are conscious of the fact that they have greater resources than their opponents may tactically prefer to avoid the schemes to force defendants to give full disclosure.
Whilst the Committee was clearly alive to these risks and the court has the power to apply a costs sanction if a party has acted in an oppressive or unfairly prejudicial manner, it will be very interesting to see what approach is taken by High Court judges to applications by parties to "opt-in" and "opt-out" of the schemes.