Litigation Lite to become a reality?
23 November 2015
In a judge-led initiative to improve efficiency and costs in litigation, two pilot schemes for shorter trials and flexible trials are now underway in the Rolls Building of the High Court in London which includes the Commercial Court, the Technology and Construction Court, the Chancery Division and the Mercantile Court. The two-year schemes aim to make business litigation cheaper and simpler and improve access to justice in commercial disputes, with cases being concluded in under a year.
Although many of the procedures which will be followed in the pilot are already available under the CPR, they are not always applied comprehensively in the same case. By bringing everything together in one place, the schemes formally recognise that a comprehensive litigation process and full trial on all issues is often not necessary. It is hoped that this, in turn, will help to foster a change in litigation culture allowing for speedier and more efficient access to justice.
The Shorter Trial scheme provides for a heavily streamlined process in order to resolve disputes on a commercial timescale. Intended for cases which can be fairly tried on the basis of limited disclosure and oral evidence, cases will be dealt with by the same docketed judge from beginning to end with the aim of reaching trial within approximately 10 months. The maximum length of trial would be four days, including reading time.
The Flexible Trial scheme allows for more flexible case management, offering arbitration style flexibility without the need to opt out of the court system altogether. It aims to reduce trial lengths primarily through reductions in disclosure and oral evidence and submissions.
Parties opting in to either scheme can expect variations from the standard litigation timetable in order to expedite and simplify the trial procedures. These variations include:
- pre-action protocols – will not be used, save as to propose use of the scheme
- pleadings – will be limited in length to 20 pages
- early CMC – to be held approximately 12 weeks after the acknowledgment of service is filed
- trial Date – to be fixed not more than 8 months after the CMC and limited in length to 4 days including reading time, and judgment to be handed down within 6 weeks
- disclosure – limited to documents relied on and documents requested by the other party
- evidence – both factual and expert evidence confined to writing and limited in length. Oral evidence will be limited to issues identified at the CMC or subsequently. A ‘chess clock’ may be used to limit time taken for cross examination
- applications – other than those made at the CMC will be made on paper or conducted by telephone
- cost budgeting – will not apply (unless parties agree). Costs will be summarily assessed by the judge at the conclusion of the trial
- extensions of time – will only be permitted in limited cases or with permission of the court
Eligibility to use litigation lite
Both schemes require the parties to opt in. This can be by agreement or at the request of either party and may be encouraged by the court in suitable cases. Recognising the risk that a well-prepared claimant could try to use the scheme to ambush a defendant in the pre-CMC stage, a defendant has the opportunity to apply to transfer out of the scheme if it considers the case unsuitable. Inevitably the schemes are not suitable for all matters. Specific noted exceptions include cases involving allegation of fraud/dishonesty; requiring extensive disclosure and/or reliance on extensive witness/expert evidence; involving multiple issues/parties; or for Intellectual Property or public procurement cases.
Full details of the schemes can be found in Practice Direction 51N which was introduced by the 81st update to the CPR, alongside a new Financial List and Financial Market Test Case Pilot Scheme, which you can read more about here.
Commenting upon the schemes, Lord Chief Justice, Lord Thomas of Cwmgiedd, said:
“Small and medium sized businesses are the lifeblood of the economy. To prosper, they need disputes to be resolved in a speedy, fair and economic way. The introduction of this judge-led reform will help to ensure that court users can have their disputes resolved quickly, improving access to justice for businesses .”
What litigation lite means for you
With the courts set to encourage parties and their advisers to consider using the pilot schemes for suitable cases, a consideration of the merits of opting in should form part of the scoping exercise for all material disputes. Of course, the ability to accurately determine at an early (pre-CMC) stage whether a dispute is simple enough to be suitable for the schemes may prove difficult in some circumstances and it remains to be seen whether the courts themselves have sufficient capacity to hear claims within the expedited time period. The trials will run until September 2017.