Litigation developments: what to look out for in the second half of 2015 (and beyond)

Written on 20 Jul 2015

With cost budgeting and management firmly established in English litigation, parties have for some time been focussing on reducing the cost of litigation. The courts are also now looking at ways of reducing the time taken to get to trial, improving the efficiency of court processes and dealing with low value claims in new ways.

Trials: the shorter, the earlier, the better

A working group, which includes judges from the Commercial Court, the Technology and Construction Court (TCC) and the Chancery Division of the Queen’s Bench Division, as well as private practitioners, has been looking at how the court can deliver shorter and earlier trials. 

This initiative is borne out of a recognition that not every case needs a comprehensive disclosure exercise and oral trial of all of the issues. Often, a truncated procedure will better suit parties’ needs, by delivering justice that is fair but speedy, and at a more reasonable and proportionate cost.

The working group has proposed two new procedures for commercial cases in certain courts: 

  • A “Shorter Trial” procedure, which would aim to lead to trial within 10 months of proceedings being issued and judgment being delivered within six weeks of trial (so less than a year from start to finish). This would involve a streamlined procedure and a trial of no more than four days. 
  • A “Flexible Trial” procedure, which would give the parties flexibility to agree simplified and more expedited procedures than full trial under the current Civil Procedure Rules. The type of procedures which could be simplified include: disclosure, factual evidence and expert evidence. 

Expedited trials are already used in certain types of cases (such as procurement challenges). The use more widely of flexible procedures should help parties to bring litigation further into line with parties’ commercial objectives. The working group’s consultation on its proposals has closed and its response is awaited. 

Electronic working to be Roll-ed out in autumn 2015 

The courts have long acknowledged that filing and dealing of vast amounts of documents in hard copy is neither efficient nor in step with a world class legal service. Previous attempts have been made to introduce electronic working procedures, but have been abandoned following difficulties with the technology used. 

Since 16 June 2015 the TCC has been piloting a new electronic working system. In autumn 2015 will be introduced to all courts situated in the Rolls Building in London (which includes the Chancery Division and the Commercial Court). 

The key advantages of the new electronic working practices are that claim forms and other documents can be filed electronically, and court fees paid, 24 hours a day on any day of the year. This might not seem revolutionary, but when it comes to issuing urgent claims or applications, modern working methods can avoid last-minute rushing (or worse). Court staff and judges will also have access to all documents stored on the Court’s electronic file which, for anyone who has had to deal with court files being lost or temporarily misplaced, will also be welcomed.

Online Dispute Resolution: A new approach to low value claims?

Earlier this year, an advisory group of the Civil Justice Council issued a report calling for far-reaching reform of the court system for resolving low value claims. Some of those reforms may begin to be piloted by the end of the year, with a view according to the advisory group of establishing a brand new “HM Online Court” (HMOC) during 2017.

The proposals are based on a proposed new Online Dispute Resolution (ODR) platform to be used for low value claims, with a three-tier approach:

  • Tier one is proposed to include online evaluation of straightforward cases, helping users to classify and categorise their issue and providing generic guidance on rights, options and remedies that may be available to them.
  • Tier two would constitute a form of “online facilitation”, or virtual mediation, providing a platform for parties to negotiate online or through teleconferencing, with the support of a facilitator (acting much as a mediator will in a commercial mediation)
  • Tier three would involve judicial consideration of a case online, largely on the papers provided to them electronically.

While these proposals might seem ambitious, particularly given restrictions on funding in the judicial system, ODR has obvious benefits for low value claims. Mandatory schemes already exist in a number of sectors and an EU-wide ODR platform will be operational from 9 January 2016 for cross-border consumer disputes and businesses selling online to consumers will need to include a link to that platform. 

For consumer-facing businesses, ODR is likely to become the dominant method of resolving low-value disputes with consumers, if it is not already.