It seems that whenever the court changes its rules with a view to improving efficiency or reducing costs, it has the opposite effect. The so-called “Jackson reforms”, which introduced court-supervised “cost budgeting”, are universally viewed (except by Lord Jackson) as greatly increasing costs and causing considerable delay. Days are spent in preparing budgets and then arguing about them, and the courts are swamped by costly costs hearings, pushing other hearings further into the future.
Despite the poor track record of reform, there are now two pilot schemes that might actually have a positive effect. The Shorter Trial Procedure and the Flexible Trial Procedure have been available since 1 October 2015 for all matters proceeding in the Rolls Building in London. That covers the Chancery Division, the Commercial Court, the Technology and Construction Court and the Mercantile Court. The aim of both schemes, which parties can opt into, is “to achieve shorter and earlier trials for business related litigation,at a reasonable and proportional cost”.
The Shorter Trial Procedure has the aim of reaching trial within ten months of issuing proceedings and provides for a tighter and stricter timetable for the procedural stages, with limited disclosure and less oral evidence. The maximum length of trial will be four days, including the judge’s reading time. The statements of case, e.g. the claim and defence, should be no more than 20 pages. Disclosure will be limited to documents that support each party’s case and those that are requested. The Flexible Trial Procedure will enable parties to adopt a procedure to suit the case, rather like in international arbitration.
It strikes me that in a number of respects this represents a turning of the tide which began in 1999 with the entire replacement of the old court rules by the new Civil Procedure Rules (CPR), in a grandiose move steered by Lord Wolff. One of the central tenets of the CPR was to be “active case management” by the court, taking decision-making and flexibility away from the parties and their solicitors. There may have been some need for that at the lower end of the market, but not for commercial litigation. Due to a lack of court time and resources, active case management was never properly implemented, which was probably for the best. Belatedly, it now seems to be accepted that the parties’ interests are better served by the solicitors taking the initiative in devising the procedure, to avoid delay and costs.
Another tenet of the CPR is also to be abandoned in the pilot schemes, namely “pre-action protocols”. The idea was that if, before issuing proceedings, the parties “put their cards on the table” then it would facilitate settlement and avoid proceedings. That requires a detailed letter of claim, followed by a detailed response. Considerable time is allowed, and in certain types of claim, such as professional negligence, it can take up to five months. Apart from the delay, it leads to “front-loading” of costs, as matters need to be explored in depth at a very early stage. In practice, following the pre-action protocol almost never results in a settlement, just wasted time and potentially wasted costs. Sensibly, the Shorter Trial Procedure will just require a 14 day letter before action, as used to be the way before the CPR.
Finally, and perhaps best of all, costs budgeting will not apply, and instead any costs to be paid by one party to another will be assessed summarily by the trial judge.
The Shorter Trial Procedure will not suit bigger cases but, if the pilot is a success, it seems likely that its principles will be extended to other cases, and that should be welcomed by parties, lawyers and the courts.
Paul Howcroft, Partner, Fladgate LLP (firstname.lastname@example.org)