Shorter and Flexible Commercial Procedures – Optional Schemes

These two new initiatives apply to claims issued on or after 1 October 2015 in different divisions of the High Court.

The Shorter Trial Scheme

The Shorter Trial Scheme will not normally be suitable for cases including an allegation of fraud or dishonesty, those which are likely to require extensive disclosure and/or reliance upon extensive witness or expert evidence, cases involving multiple issues and multiple parties, save for Part 20 counterclaims for revocation of an intellectual property right, cases in the Intellectual Property Enterprise Court or public procurement cases.

The length of trials in the Shorter Trial Scheme will be no more than 4 days including reading time.
For consistency, unless unavoidable, all claims will be allocated to a designated judge at the time of the first case management conference if not earlier. That Judge will then try the claim.

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 shall notify the proposed defendant of the intention to adopt the Shorter Trial Scheme procedure. The proposed defendant shall respond within 14 days stating whether it agrees to or opposes that procedure, or whether it has insufficient information to commit itself either way.

The Particulars of claim require additional documents and should be no more than 20 pages in length.
A 14 day period is allowed for the defendant’s response to the letter of claim or the defendant’s response, if a longer period for response is agreed between the parties.

After serving the claim form and Particulars of Claim, the Claimant should take steps to fix a CMC for a date approximately (but not less than) twelve weeks after the defendant is due to acknowledge service of the claim form. The defence and any counterclaim must be served within 28 days of acknowledgment of service of the claim form. A defence should include a statement indicating whether it is agreed that the case is appropriate for the Shorter Trial Scheme or, if not, why not and a summary of the dispute and identification of the anticipated issues (if different to that of the claimant). As with the particulars of claim, the defence and counterclaim should be no more than 20 pages in length and accompanied by a bundle of any additional core documents on which the defendant intends to rely.

At the first Case Management Conference the court will review the issues, approve a list of issues, consider ADR, give directions for trial and fix a trial date (or window), which should be not more than 8 months after the CMC and fix a date for a Pre-Trial Review.

The usual rules on disclosuredo not apply.If any party wishes to seek disclosure of particular documents they must write to the other party to make such requests not less than 14 days in advance of the CMC and, absent an agreement regarding the extent of the disclosure to be given, raise such requests at the CMC. In deciding whether it is necessary to make an order, the court will have regard to how narrow and specific the request is, whether the requested documents are likely to be of significant probative value and the reasonableness and proportionality of any related search required.
The parties shall, within 4 weeks of the CMC, make and serve a disclosure list and serve copies of all documents in the list.

Witness statementswill stand as the evidence in chief. Witness statements should not without good reason be more than 25 pages in length.

Any expert evidence will be given by written reports and oral evidence shall be limited to identified issues, as directed at the CMC or as subsequently agreed by the parties or directed by the court.
Any necessary applications will be dealt with on paper without a hearing unless one party requires a hearing which must be justified. Any such hearing will be dealt with by telephone.

At the Pre-Trial Review the court will review the case and will fix the timetable for the trial, including time for speeches and for cross-examination.

The court will endeavour to hand down judgment within six weeks of the trial or (if later) final written submissions.

If at the outset of the proceedings the parties agree that Costs Management should apply, they should seek an order to that effect at the CMC and apply for directions as to when budgets should be subsequently exchanged, discussed and submitted for the court’s approval. Otherwise, within 21 days of the conclusion of the trial, or within such other period as may be ordered by the court, the parties shall each file and simultaneously exchange schedules of their costs incurred in the proceedings. The court will then make a summary assessment of the costs of the party in whose favour any order for costs is made.

The Flexible Trial Scheme

This Scheme enables the parties to agree to invite the court to determine identified issues on the basis of written evidence and submissions. In such a case, whilst the court will seek to comply with the parties’ request, it may call for oral evidence to be given or oral submissions to be made on any of the identified issues if it considers it necessary to do so. Where an issue is to be determined in writing it is not necessary for a party to put its case on that issue to the other party’s witnesses.

If the parties wish to adopt the Flexible Trials Scheme they should agree to do so in advance of the first CMC and inform the court accordingly. The court will then give directions in accordance with Flexible Trials Procedure and any agreed variations of it.

Generally, the following directions apply where the Flexible Trials Scheme is adopted:

  • a. each party will be required to give standard disclose without the need for a search. At the same time the party may request specific disclosure of documents it requires from any other party. If there is a dispute as to whether specific disclosure should be provided the court will have regard to how narrow and specific the request is, whether the requested documents are likely to be of significant probative value and the reasonableness and proportionality of any related search.
  • b. Witness evidence will be given by written statements and oral evidence shall be limited to identified issues or identified witnesses, as directed at the CMC or as subsequently agreed by the parties or directed by the court.
  • c. Expert evidence will be given by written reports and oral evidence shall be limited to identified issues, as directed at the CMC or as subsequently agreed by the parties or directed by the court;
  • d. submissions at trial will be made in writing with oral submissions and cross examination subject to a time limit, as directed at the CMC or as subsequently agreed by the parties or directed by the court;

Any necessary applications will be dealt with on paper without a hearing unless one party requires a hearing which must be justified. Any such hearing will be dealt with by telephone.
At the Pre-Trial Review the court will review the case and will fix the timetable for the trial, including time for speeches and for cross-examination.

The court will endeavour to hand down judgment within six weeks of the trial or (if later) final written submissions.

If at the outset of the proceedings the parties agree that Costs Management should apply, they should seek an order to that effect at the CMC and apply for directions as to when budgets should be subsequently exchanged, discussed and submitted for the court’s approval. Otherwise, within 21 days of the conclusion of the trial, or within such other period as may be ordered by the court, the parties shall each file and simultaneously exchange schedules of their costs incurred in the proceedings. The court will then make a summary assessment of the costs of the party in whose favour any order for costs is made.

Please note that these notes should not be relied upon as legal advice or an interpretation and application of the law to particular circumstances or matters.

The material in these notes has been designed solely for the purpose of giving general guidance. The material does not stand on its own and is not intended to be relied upon for giving specific advice.

To the fullest extent permitted by law, Gisby Harrison will not be liable by reason of any breach of contract, negligence or otherwise for loss or damage (whether direct or indirect) occasioned to any person acting or omitting to act or refraining from acting on these notes or any error or omission in the notes.

Loss and damage as referred to above shall include, but is not limited to any loss of profits or anticipated profits, damage to reputation or goodwill, loss of business or anticipated business, damages, costs, expenses incurred or payable to any 3rd party (in all cases whether direct or indirect) or any other direct or indirect loss or damage.

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