A new direction, coming into effect on 29 April, will change the commercial litigation landscape in Northern Ireland and will impact on how the business community and their advisors approach legal actions around commercial disputes.
In this update we outline the major changes to current commercial court practices and some of the processes those pursuing actions in the commercial court in Northern Ireland will need to be prepared for going forward.
The Commercial Hub - Scope
The Direction outlines the creation of a Commercial Hub to serve the commercial community across Northern Ireland with a commitment to resolving disputes efficiently and cost effectively.
Although the Direction has been issued for the Commercial section of the Queen's Bench Division, it does bring the potential for Chancery, Family and Judicial Review cases with some commercial complexity to be heard within the Commercial Hub. In these cases a judge from the relevant division will hear the case but will do so as part of the Hub.
Currently Commercial List actions are heard at the High Court in Belfast but the new Direction allows for the Hub to sit anywhere in Northern Ireland, where a suitable venue is available.
Any case going to trial in the Commercial Hub will now be the subject of 3 key case management stages. Consistency, procedural steps to suit the particular case, and a culture of compliance are highlighted by Mr Justice Horner as key to effective case management.
Superseding existing guidance, the new Practice Direction brings clearer, more prescriptive, formal case management practices to the Commercial Court in Northern Ireland.
Court time will be allocated for case management discussions with the aim of determining case issues, controlling evidence gathering and ensuring a final hearing as soon as possible.
Three key case management stages are being introduced and will replace the existing "review" system:
- Early Directions Hearing
- Case Management Conference
- Pre-trial review (unless the parties agree and Judge is satisfied that there is no requirement)
The Direction suggests that three case management hearings should be sufficient if directions are followed and further hearings will need to be requested in writing and may have costs consequences. All parties to an action and key persons, including Counsel and solicitors, are required to attend Case Management Conferences.
Implications for Discovery
Parties are now being encouraged to agree a discovery plan before the Early Directions Hearing and to consider how appropriate different types of discovery may be, including no discovery. For the first time, electronic discovery is being promoted with search words and / or predictive coding where appropriate. The appropriate discovery will need to be evaluated. Where one party insists on full discovery which is later shown to be of limited assistance in the resolution of the dispute there may be costs implications against the party insisting on that discovery, regardless of the outcome of the dispute proceedings.
The case management process brings a new timetable to commercial litigation with potentially tighter deadlines and any requests for extensions to be made before time limits expire.
With Early Directions Hearings to take place within 3 weeks of the service of the Writ of Summons or Originating process parties initiating commercial action will need to be prepared to promptly discuss areas such as costs, discovery, expert evidence and ADR.
New timelines for filing documents are also outlined. For example, certain documents will need to be filed not less than 7 days before the Case Management Conference and Pre-Trial Review. For trials a core bundle should be available four weeks before trial and all other trial bundles at least 2 weeks before the trial commences (an earlier deadline than outlined for trial bundles in Practice Direction No 1/2000).
Implications for non-compliance
The Practice Direction makes it clear that practitioners are expected to comply and sanctions including costs orders, dismissal, or the striking out or limiting of claims, defence and/or evidence may be imposed for failure.