Justice delayed is justice denied: the Shorter Trials Scheme and Flexible Trials Scheme are here to stay


Author: Sarah Charig


Sarah Charig, Associate, Fladgate LLP (scharig@fladgate.com)


 

From 1 October 2018, following a successful three year pilot, the Shorter Trials Scheme (STS) and Flexible Trials Scheme (FTS) will operate in all Business and Property Courts nationwide, offering businesses pragmatic and cost-effective options to resolve their disputes.

In October 2015, the court introduced two trial schemes: the STS and the FTS. Their purpose was “to achieve shorter and earlier trials for business related litigation, at a reasonable and proportional cost”.

The STS truncates the route to trial. It aims to hear claims within ten months of issue and for judgment to be handed down six weeks after the hearing. It achieves this by, amongst other things, dispensing with pre-action protocols, limiting the length of statements of case and written evidence, restricting oral evidence, ensuring strict adherence to the timeline to trial and keeping trial to a maximum of four days. Docketed judges are also allocated to each case for greater continuity and efficiency. A key feature of the STS, which hugely assists with cutting down the usual trial timeline, is its departure from standard disclosure; instead the STS obliges parties to disclose only documents they intend to rely upon and/or those that are specifically requested.

The FTS brings flexibility; parties by agreement can adapt the trial procedure to suit their particular needs. Its aim is to encourage parties to adopt a more streamlined process. It provides for limited disclosure and confines oral evidence at trial to the minimum necessary.

The STS received considerable praise during the pilot. In National Bank of Abu Dhabi PJSC v BP Oil International Ltd [2016] EWHC 2892, the first trial heard under the STS, the judge commended the cooperative spirit between the parties and heralded the process as effective and speedy. Despite the bank pursuing almost US$68.9m in damages, the total costs on each side were estimated to be approximately £350,000, far lower than would be expected had the “standard” litigation process been followed.

The STS will not, however, be appropriate for all cases, specifically those alleging fraud or dishonesty, or those which rely on extensive witness or expert evidence. Nevertheless, for more straightforward commercial disputes it is a procedure certainly worth considering given its obvious benefits, particularly the time and costs savings. For cases where reaching agreement on the trial procedure with the opposing party is a possibility, the FTS should not be overlooked.

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