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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 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.
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.
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