Following the now infamous collapse of both the BCCI Liquidators claim against the Bank of England and the Equitable Life litigation it was widely suggested by commentators that this had revealed systemic weaknesses in the procedures of the Commercial Court. In response to this in January of this year a working party was set up to consider all aspects of the management of heavy and complex litigation in the Commercial Court. The working party was made up of representatives of the judiciary, barristers, solicitors and clients.
After almost a year the working party has published its report, which contains a number of potentially important proposals to streamline the litigation process in the Commercial Court. The report can be accessed at www.judiciary.gov.uk/publications_media/index.htm and contains a convenient executive summary of the recommendations.
Revolution or evolution?
No fundamental change to the procedures of the Commercial Court is recommended. Litigation in the Commercial Court will look, and feel, very much the same. For example the obligation to give disclosure remains essentially the same. Additionally, the working party rejected other radical ideas such as imposing a daily charge for the use of the Court. This is certainly not revolutionary change. But then nor did it need to be. The Commercial Court remains a high-quality tribunal much admired internationally. Rather than radically altering what the Commercial Court does, and thus endangering its reputation for quality, the aim has been to see if there are ways of streamlining its procedures to make highquality justice in commercial cases a quicker and more affordable commodity.
So what changes have been recommended? Perhaps the working party’s most immediately eye-catching proposals are those that impose specific limits on the length of certain key documents and of certain phases of the trial to reduce time and cost. For example, it is recommended that statements of case should not exceed 25 pages in length and that no opening speech should ever ‘ordinarily be estimated to exceed two days, even in the heaviest case’. The contrast with the BCCI litigation here is stark. The two opening speeches in that case filled 216 Court days. This is, therefore, a laudable attempt to shorten trials even if ad hoc limits, imposed in the abstract without regard to the scale and complexity of any particular case, may prove to be too arbitrary to be genuinely useful.
What is potentially much more significant are the recommendations that enable the judge to take active control of procedure. Indeed, perhaps the most valuable of all the proposals is that the allocated judge must at the very first procedural hearing review the parties’ statements of case and settle the list of key issues in the case (to be known as ‘the list of issues’) and that list will then replace the parties’ own statements of case, which will have ‘only secondary importance’. From the very outset it will be the Court’s list of issues that will guide and shape the case and the procedural directions that are made.
The list of issues – practical implications
This list of issues will be ‘used to regulate subsequent disclosure, witness statements and expert reports, all of which must be framed by reference to the issues within the list’. This will mean that from the very point at which the judge is first introduced to the case he or she will have to identify and understand the issues in the case to settle the list of issues. The judge will then be able to make all procedural directions from a position of knowledge so that more focused decisions about what is necessary to do justice in the particular case can be made. It is by ‘bespoke’ orders tailored to the needs of a particular case and abandoning a ‘one size fits all’ approach to litigation that real progress in reducing wasted time and costs can be made. The judge will not only have to take charge of the procedure for trying the particular case but will have the kind of detailed knowledge of the issues in the case that will equip him to do it. He or she will be able confidently to judge whether, in the circumstances of the particular case, it is appropriate to impose limits on disclosure, oral evidence, expert evidence, oral examination at trial and so on.
Judges should say what they think
The recommendations are aimed at enabling and empowering judges to take control of what happens in the cases for which they are responsible. Additionally the working party has specifically confirmed that a judge not only can but should ‘give provisional views on the merits of particular issues identified in the list of issues’. This could be as early as at a pre-trial procedural hearing or at any stage during the trial itself. When the judge trying the BCCI case indicated in his costs judgment after the collapse of that trial that he had formed a clear view halfway through the trial that the case was bound to fail but had felt unable to communicate that view to the parties, many could not understand why he had felt so inhibited. There is now a clear mandate for judges to say what they think about a case during the course of it and not to wait for its conclusion. By this step alone much wasted time and cost will be avoided. This is to be warmly welcomed.
The success of the working party recommendations will depend upon the willingness of judges to accept the responsibility to expedite proceedings by taking charge of them. They will not only have the duty to run cases in a cost effective way but will have the tools with which to do it. Armed with knowledge of the key issues in dispute from the outset, there is no reason why they cannot take the kind of responsibility that the working party is recommending. All practitioners should welcome this and encourage the Commercial Court judges in pursuing this objective.
In this regard, it has now been announced that the recommendations are to be put into full effect for a trial period from 1 February to 31 July 2008. All users of the Commercial Court are encouraged to familiarise themselves with the recommendations and to operate in accordance with them. It is to be hoped that the experiment will prove to be a success. With the right approach from the bench there is every reason to hope that it will be