This article was published in Solicitors Journal on 12 December 2016
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We considers what effect the shorter and flexible trial schemes have had on practice
As is well known, the growing cost of litigation and the delays to court availability have become a great cause of frustration, turning parties to alternative forums. It has, however, been just over a year since two pilot schemes were introduced into the Rolls Building courts under practice direction 51N: the shorter trial scheme (STS) and the flexible trial scheme (FTS).
Both of these schemes seemed to offer exciting alternatives for businesses hoping to resolve disputes both quickly and affordably. By shortening the route to trial, businesses should be able to avoid the significant cost barriers involved in full-blown litigation. But how have these schemes fared in the past year, and do they have a future?
Despite the potential advantages of these alternative routes, the uptake of the STS and FTS has so far been modest. To date, ten cases have been issued or transferred to the STS with one trial judgment (Vitol v Africa Oil & Gas); none have yet taken advantage of the FTS. However, this is not overly surprising considering public awareness of the schemes only really started in early 2016, and a slow initial uptake of new schemes is not uncommon.
In any event, the court is undoubtedly encouraging their use going forward. First, these schemes have now been extended by 18 months to run until the end of September 2018. Further, in his keynote speech at the 2016 Commercial Litigation Association annual conference, Mr Justice Blair expressed his optimism for the development of the STS and FTS, urging both solicitors and their clients to consider their suitability when bringing claims.
A point that was clearly made is that ‘justice delayed is justice denied’. The court should have a duty to help parties conclude disputes both swiftly and cost-efficiently and these schemes should assist in realising this. It is clear that keeping up with the commercial appetite for quick, efficient justice is becoming a priority for the court.
By expediting the trial timescale, the STS seeks to provide judgment within approximately one year of bringing the claim. It is therefore certainly worth considering for relatively simple business disputes which do not require a large amount of documentation or witness evidence. Further, by dealing with applications on paper or by telephone, limiting the length of written evidence, and, crucially, adopting an arbitration-style disclosure whereby parties only disclose documents they rely upon, the administrative burden often involved in litigation can be greatly reduced.
The FTS, on the other hand, brings the flexibility of arbitration into the commercial court and passes control of procedure to the parties, an advantage which means they can agree on what is appropriate to suit their particular needs. The English courts have long been the forum of choice for businesses due to the predictability of outcome, legal certainty, and fairness of the judgments handed down. However, in a highly competitive legal market, the commercial courts must ensure they remain an attractive venue for business litigation and the STS and FTS, if successful, should offer attractive options for those looking to obtain high-quality justice at an affordable price and in a commercial timeframe.