Litigation and things

Shorter Trials Scheme & Flexible Trials Scheme

A new pilot is set out (7 October 2015 c/f White Book) in CPR Practice Direction 51N and in force since 1 October 2015. It has a bearing on cases proceeding through the Rolls Building as it may encourage cases going straight to Court rather than pre action protocol.

This pilot is a part of a general initiative the MOJ has set to improve costs and efficiency, and ensure that London remains an attractive venue for disputes. One commentator is quoted assaying:

The English civil justice system operates in an increasingly globalised and competitive market, with international businesses seeking not only robust enforceable decisions, but also efficiently delivered ones. These reforms represent a practical and commendable attempt to address certain criticisms that have been levied in recent years against the English civil justice process. As ever, much will turn on the extent to which these reforms are embraced and implemented by the courts. We will be monitoring developments closely.

The goal is to said to be to achieve shorter and earlier trials for business-related litigation, at a reasonable and proportionate cost. Not unlike public sector adjudication but with the full costs sanction proceedings bring.  It aims to offer "dispute resolution on a commercial timescale".

Now the next bit is important, it is said to be suitable for cases which do not require extensive disclosure, or witness or expert evidence.

Trials will be no longer than four days, including reading time, and all claims in the scheme will be allocated a designated judge (docketing as we head pre 2006 in the TCC) at the first case management conference (CMC).

The aim is to reach trial within ten months of the issue of proceedings, not mega fast but quick. After trial, the court will endeavour to hand down judgment within six weeks.

Costs budgeting will not apply unless the parties agree otherwise. Instead, within 21 days of the conclusion of the trial, the parties each file and simultaneously exchange schedules of their costs, with enough detail for the trial judge to make a summary assessment.

The idea is the putative claimant should, except in cases of real emergency or where there is ‘good reason’ not to do so, send the defendant a letter before claim advising them of their intention to use the scheme.

However, note an application can also be made to transfer a case into or out of the scheme, and the court may suggest use of the scheme where it thinks it suitable, so ‘as if’ order can be made. Ideally, such applications should be made before the first CMC, but no doubt can be made after too.

It seems the Flexible Trial scheme therefore allows parties, by agreement, to adapt the trial procedure (including disclosure, witness and expert evidence and submissions at trial) to suit their particular case. Again, it involves limited disclosure and oral evidence and should assist in reducing litigation cost and the time required for trial, as well as ensuring that appropriate cases reach trial earlier.

The key aspiration is flexibility and choice and the scheme is voluntary. Any agreement to be part of the scheme should be made before the first CMC and the court must be advised accordingly.

Given the flexibility already available to judges under their case management powers, it will be interesting to see what impact these schemes will have with other cases in the list and if this voluntary aspect has some arm bending attached via ‘as if’ orders!

The link to PN 51N is as follows:

“Prior to issuing proceedings, you should consider whether the Shorter and Flexible Trials Pilot Schemes (which aim to reduce the time and costs incurred by parties to litigation and provide a mid-point between the “rough justice” of adjudication and full blown TCC litigation) might be suitable for your claim.

The Schemes were introduced by PD 51N and apply to all claims issued in the High Court Rolls Building between 1 October 2015 and 30 September 2017.

The Shorter Trials Scheme (“STS”) offers judgment within a year of the issue of proceedings through a revised, streamlined procedure. It is aimed at straightforward cases, and is not suitable for cases involving allegations of fraud, extensive disclosure, extensive witness/expert evidence, or complex cases with multiple issues or parties.

The key points of the STS are as follows:

* Whether the case is suitable for the STS is at the discretion of the court.

* There is simplified pre-action procedure which replaces any applicable pre-action protocol.

* The length of statements of case, witness statements and expert reports are restricted (for example, there is a maximum of 20 pages for the Particulars of Claim).

* All proceedings will be heard by the designated judge as far as possible to reduce reading in time. 

* Applications will generally be dealt with on paper.

* Disclosure is limited to documents relied upon or specifically requested.

* Trial length is restricted to 4 days (including reading time) and cross examination is restricted.

* Costs budgeting does not apply unless otherwise agreed.

The Flexible Trials Scheme (“FTS”) enables the parties to agree a flexible, simplified and expedited case management procedure, with the aim of reducing costs and obtaining an earlier trial date.

The key points of the FTS are as follows:

* Claims are issued as normal and parties agree the use of the FTS prior to the first Case Management Conference. 

* Once the use of the FTS is agreed, certain streamlined directions apply (subject to any modifications agreed by the parties) unless the court considers there to be a good reason why they should not. 

* Disclosure is restricted, although it is wider than in the STS. 

* Oral evidence at trial is limited to identified issues or witnesses as directed at the CMC or agreed between the parties. 

* Submissions at trial are generally made in writing, with oral submissions and any cross-examination to be subject to time limits decided at the CMC or agreed between the parties”.

Annual Dinner 2015


WHEN:  26th November 2015

WHERE:  National Liberal Club, Whitehall Place


Annual Adjudication Conference 2015


WHEN:  26th November 2015

WHERE:  CMS Cameron McKenna LLP

COST:  £50 (or free to fully paid up TeCSA Adjudicator Panel members)


More details to follow.

eDisclosure in Practice - Seminar

TCC Protocol, Engaging service providers, Data Harvesting, Computer Assisted Review, Document families, Keywords, Redactions, Inadvertent disclosure...

Dear Members

TeCSA is running its 2nd eDisclosure Seminar:

Date: 10 June 2015

Time:  2pm - 5pm

Venue:  Nabarro


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