How to make Litigation simpler and more cost effective

The Court has recently implemented the “Shorter and Flexible Trial Schemes” to make business litigation more expeditious, simpler and more cost effective.  These Schemes will be piloted for two years from October 2015 in the Commercial Court, the Technology and Construction Court, the Chancery Division and the London Mercantile Court. A new Practice Direction – 51N – spells out these Schemes.

What are these Schemes and are they suitable for your purposes?

The Shorter Trial Scheme

The aim of the Shorter Trial Scheme is to resolve a dispute from start to finish within 10 months with the same judge dealing with all matters/hearings. The Shorter Trial Scheme is suitable for commercial and business cases where comprehensive disclosure, witness and expert evidence and an oral trial on all issues are not necessary for the matter to be fairly decided. Not all business cases will be suitable for the pilot; cases involving allegations of fraud or dishonestly immediately spring to mind as being unsuitable.   In such circumstances a defendant may apply to transfer the case out of the Scheme for reasons of unsuitability.

It is anticipated that costs will be controlled at all stages throughout the process:

• The pre-action stage:  Save where there is good reason not to do so, as in a case of urgency, a letter of claim should be sent giving succinct but sufficient details of the claim to enable the potential defendant to understand and to investigate the allegations. The letter of claim should notify the defendant of the intention to adopt the Scheme. The defendant should respond within 14 days.
•  The Claim Form and Particulars of Claim must then be served promptly and a defence 28 days thereafter.
• Statements of case are restricted to a maximum of 20 pages and must attach a bundle of core documents upon which the party relies. This is important, since additional disclosure will be limited. That procedure in relation to documents is commonly found in arbitrations. This approach echoes Civil Law jurisdictions, where parties generally produce only those documents upon which they seek to rely rather than all documents relevant to the case.    
• Disclosure is limited to those documents relied upon or requested by the other party and those agreed between the parties or ordered by the court.
• Each case will be dealt with throughout by the same judge.
• At the Case Management Conference (CMC) the court will review and approve a list of issues, consider Alternative Dispute Resolution and give directions. The list of issues is intended to exclude peripheral matters.
• To minimise costs and increase speed, applications (other than the CMC) will be primarily dealt with on paper or conducted by telephone.
• The date of the trial will be fixed to take place within 8 months from the CMC for a hearing lasting no more than 4 days, including reading time. It is anticipated that the advocates will be subject to a strict time-table for filing submissions and during the trial.
• Generally factual and expert evidence should be in writing and oral evidence is limited to issues which have been identified to the judge at the CMC or subsequently.
• The parties must exchange schedules of costs within three weeks of trial.
• The court will attempt to hand down judgment within six weeks of trial.
• The costs of the whole case will be assessed on a summary basis by the trial judge. Who better to assess the costs than the judge who has had the conduct of the case throughout?

The Flexible Trial Scheme

The Flexible Trial Scheme allows parties to have more control over the litigation process as they deem appropriate for their case, including agreeing the extent and nature of disclosure, witness and expert evidence and submissions at trial.  Although the court will take into account issues agreed between the parties, it will remain in the driving seat as to the procedure adopted.

A Standard Flexible Trial Procedure is set out in paragraph 3.9 of PD 51N and this will generally be used by the parties, unless the court orders otherwise.  Alternatively, the parties are able to agree to bespoke procedures suitable to their individual case.  As with the Shorter Trial Scheme, parties are encouraged to limit disclosure and to narrow oral evidence at trial to the core issues in dispute, for example by the parties inviting the court to determine identified issues on paper during the pre-trial period. 

Conclusion

Delays and costs are the pet hates of all litigants.  Almost 20 years ago, Lord Woolf in the Access to Justice Final Report identified defects in the system, including it being “too expensive in that the costs often exceed the value of the claim” and “too slow in bringing cases to a conclusion”. 13 years later, Lord Justice Jackson noted that “the costs of civil litigation continue to rise.”  These problems can often be accredited to unmeritorious interim applications, extensive disclosure, irrelevant peripheral issues and unnecessarily lengthy oral evidence, including repetitive cross-examination.

The Shorter and Flexible Trial Schemes are intended to reduce the costs incurred and the time required to get to trial and to promote expediency. Whether they will succeed in achieving their stated objectives only time will tell. Assuming that they are declared a success, we can expect to see these Schemes rolled out for all disputes in the coming years.