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High Court pilots shorter and flexible litigation schemes

22/09/15

by Joseph de Lacey and Oliver Bishop

The Ministry of Justice has announced the launch of two pilot schemes designed to simplify and speed up commercial litigation in the High Court.

The Shorter Trials Scheme and the Flexible Trials Scheme will be available for claims issued from 1 October 2015 in certain divisions of the High Court, including the Chancery Division, the Commercial Court and the Technology and Construction Court. Both pilot schemes will run for two years.

The new rules governing the pilot schemes were published in August of this year, following consultations in May 2015.

The Shorter Trials Scheme

The headline attraction of the Shorter Trials Scheme is ‘dispute resolution on a commercial timescale’. This ‘commercial timescale’ will be achieved by the court endeavouring to give judgment within a year of the claim being issued.

Because cases under the scheme must be capable of being dealt with at a trial lasting no longer than four days, it will only be suitable for more straightforward commercial disputes. Claims involving allegations of fraud or dishonesty, or requiring extensive disclosure or witness or expert evidence will not be suitable. Pleadings, including the particulars of claim and the defence (in which the parties set out their cases), will be limited to 20 pages in length, and both written and oral evidence from witnesses or experts may be confined to specific issues.

Claimants who want to use the Shorter Trials Scheme should issue their claim under the scheme’s Practice Direction, and the Defendant must respond to say whether it agrees that the scheme should apply.  If the Defendant does not agree, the issue will be determined by a Judge. Similarly, both claimants and defendants can apply to the court to transfer proceedings, which were not originally issued under the scheme, into it. It will be obvious therefore that there is scope, even at that early stage, for the scheme’s efficiency to be tested, and it will be telling how robustly and quickly the court deals with such interruptions.

Finally, any appeal from a judgment under the scheme may be expedited by the court. The Court of Appeal will ‘seek to take into account’ the fact that a case was in the Shorter Trials Scheme when deciding listing dates for appeals. This suggests that cases listed under the scheme may take precedence over other cases, an advantage which would prove invaluable given the current backlog at the Court of Appeal.

The Flexible Trials Scheme

The Flexible Trials Scheme gives parties the option to shorten of the litigation procedure in order to expedite the resolution of their dispute and reduce costs.

This scheme sets out a default procedure which provides for disclosure, oral submissions and oral evidence from witnesses and experts to be limited to specific issues. Further, the parties can agree to modify specific aspects of the default procedure as they consider appropriate. Of particular interest will be the rules in relation to disclosure, which provide that in some circumstances disclosure may be exchanged without the need for an extensive search for documents. This may heavily reduce the cost of each party’s disclosure exercise.

Assessment

There is in fact relatively little in these schemes that is novel. The court already possesses the necessary powers to set limits on the scope and extent of disclosure and evidence, and direct that a trial be expedited. The value of the schemes is therefore in their encouragement of a ‘change in litigation culture’ and a recognition that not all cases require comprehensive disclosure or a full, oral trial on all issues. Most of all, the scheme will be a welcome opportunity for parties to see relatively simple disputes determined on a more sensible timescale.

Harcus Sinclair has extensive experience in conducting litigation in the High Court on behalf of both claimants and defendants. If you are involved in a dispute which you feel may be appropriate for these pilot schemes, or if you require advice on whether these schemes may apply to you, we would be happy to meet with you and assist in any way possible. Please call the team on 020 7242 9700 and one of our experienced lawyers will be happy to help.

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