Shorter and flexible trials: Be careful what you wish for

Parties not used to High Court litigation in the UK are often amazed at the length of time that it can take from a dispute first emerging to receiving judgment of the case – not to mention any subsequent appeals or enforcement action. From October 2015, two pilot schemes – the Shorter Trial Scheme (STS) and the Flexible Trial Scheme (FTS) – are intended to provide new, shorter and more flexible routes to trial. In many cases this will be a great improvement over the current system and will be welcomed by the parties. However, the very speed of litigation under this system, frontloading of costs and absence of a proper pre-action stage mean that once on this course, disputes are more likely to go all (or most) of the way to trial. For some cases this could result in missed opportunities to settle early on, or at all.

Increasing the speed of the litigation treadmill sounds like a good idea, but litigants must beware of jumping in too keenly, only to find no way to get off or slow down.

Which claims are eligible?

The STS and the FTS pilot schemes commenced on 1 October 2015, as provided for in the CPR by a new practice direction: PD51N. The pilot schemes apply to cases issued from that date in any court located within the Rolls Building; that is, the Chancery Division (including the Patents Court and the Companies Court), the Commercial Court, the London Mercantile Court and the Technology and Construction Court.

The pilot schemes will not be suitable for cases involving multiple parties or involving allegations of dishonesty, where extensive disclosure or witness evidence is expected, where the trial is expected to take longer than 4 days or where the case concerns public procurement.
If a claim is eligible, the parties may elect to proceed under one of the schemes or a court may suggest this. A court will not apply either of the schemes if neither party wants to use them. If the parties cannot agree whether or not to use one of the schemes, a court will decide.

What are the main features of the schemes?

The most obvious differences between the schemes and standard litigation involve disclosure and evidence. Under the STS, parties are only required to disclose the documents that they rely on, or that the other party has specifically requested. Under the FTS, the obligation is a little wider – parties must disclose documents on the standard basis, but only those documents that they are already aware of. In both cases, the parties are not required to conduct the sort of wide-ranging disclosure exercises that typically involve significant time and costs for both parties.

Witness evidence and expert evidence is also restricted. Written statements will be limited in length and may be limited to defined issues. The court may decide factual issues on the basis of the written statements alone. If so, witnesses may not need to give oral evidence at trial. If they do, their evidence will be limited to defined issues and is likely to be closely controlled by the judge to reduce the time needed at trial.

Judicial case management is key to both schemes. For cases under the STS, at least, the case will have been assigned from the outset to a particular docketed judge, who will manage the case throughout. By controlling procedural matters, hearing any applications, and ultimately trying the case, the judge should be able to take a much more proactive role in managing the case. This should also help judges to stick to the expected timeframe of delivering judgment within 6 weeks of trial. To some, this may not seem particularly speedy, but compared with some cases where judgment has been delivered several months or even a year after trial, this is a significant improvement.

Taking into account all of the truncated stages of litigation, a case under the STS is expected to move from the issue of the claim form to receipt of judgment within a year. For a significant High Court claim this is a great deal quicker than would otherwise be expected.

STS or FTS?

While the underlying ethos is similar for the two different pilot schemes, the FTS is less prescriptive and likely to lead to less dramatic variance from standard litigation. The STS kicks in even before a claim is issued. Rather than going through the usual pre-action protocol, the following steps apply:

• The claimant starts the process by sending a succinct letter of claim;
• The defendant has 14 days to respond to the letter of claim;
• After that, the claimant should issue and serve a claim ‘promptly’, including particulars of claim and a bundle of core documents;
• The defendant has 14 days to file an acknowledgement of service and then a further 28 days to file a defence;
• The first case management conference (CMC) should be fixed, usually within 14 weeks of the claim being served.

The simplified nature of the STS continues through the life of a case (for example, most applications will be dealt with on paper, rather than at a hearing), through to the assessment of costs after judgment (which will be decided on a summary basis).

By contrast, the FTS is directed at three key stages: disclosure, witness evidence and trial. The normal pre-action and initial stages will apply and a case can be transferred to the FTS only after the first CMC. The purpose of the FTS is to allow the parties to agree flexible procedures that will reduce time and cost (as compared to standard litigation). Nevertheless, a claim proceeding in the FTS will depart from the normal manner of litigation less than a claim proceeding under the STS.

Tactical issues

While the pilot schemes may have the laudable aims of reducing the time and money spent by both sides, they also present tactical opportunities for the prepared and pitfalls for the unprepared litigant. Most obviously, with the lack of a proper pre-action stage, a prospective claimant will have the luxury of time to prepare its case, assemble evidence and take expert advice before making the first move. If the defendant is not aware that a claim is coming, it could be left very much on the back foot when it comes to responding and preparing its defence. Courts will be alive to obvious ambush tactics, and could impose sanctions where the claimant is acting oppressively or in an unfairly prejudicial way. But where the claimant is simply exercising prudence in gathering the facts before opening a potentially costly dispute, that preparatory work will give it a natural advantage over the short timescales in the STS.

Perhaps more cynically, the limited disclosure obligations could be extremely useful for a litigant that may believe that documents exist which would be damaging to it. On the other side of the coin, if a party suspects that the other side might hold documents which would help it, this must be weighed up when considering whether to use the STS or FTS.