The 11th edition of the Commercial Court Guide (the Guide) was published on 3 February 2022 and – perhaps unsurprisingly – reflects some of the major changes in disputes prompted by the COVID-19 pandemic.
The new framework, the first update since 2017, sharply focuses on the future of litigation, with emphasis on the use of virtual and hybrid hearings and the increased role of junior advocates. While there are many issues addressed in the 162-page Guide, here are what we believe are 10 of the top takeaways:
1. Paperless approach
The new edition of the Guide makes hay of several changes to practice brought about by the COVID-19 pandemic. The first of which is the use of electronic bundles – the new default position is that electronic bundles are to be used, and parties are strongly encouraged to consider the use of information technology at trial beyond just the use of electronic rather than paper bundles. It is noteworthy that the Guide also specifies that trial bundles should only include documents that the trial judge will be asked to read or that it is expected will be shown to the court at trial, and not an exercise in collating all of the disclosed documents.
2. Ongoing review of evidence
Parties should examine closely which disputes of fact raised by the cases as pleaded are significant and are likely reasonably to require disclosure, and there is an ongoing obligation to continuously review merits of the case at all stages of the proceedings. In continuation of the ongoing obligation to review evidence, once disclosure has been given, parties are asked to consider how much of such material is to be used at trial and whether factual witness evidence is required to prove or refute their respective cases.
3. Case Management Conference
A new form of the Case Management Information Sheet (CMIS) has been introduced, which must be provided to the court seven days before the Case Management Conference (CMC). The claimant is also obligated to file an updated draft order by 4.00 pm on the working day prior to any CMC, setting out: (a) all orders and directions that are agreed, subject to the court; and (b) all orders or directions proposed but not agreed, showing (where applicable) rival proposed wordings, with colour-coding, highlighting, footnotes or other convenient formatting to indicate which party or parties is or are contending for what.
4. Application of Practice Direction 57AC (PD 57AC)
PD 57AC, which was published in April 2021, now applies generally to the preparation and form of witness statements . Amongst other things, PD57 AC requires parties to ensure that witness statements: (1) are limited to necessary facts and matters and (2) identity what documents the witness has been referred to. All trial witness statements must also have a certificate of compliance, signed by the relevant legal representative, confirming that the requirements of PD 57AC have been discussed with the witness and have been duly complied with.
5. New options for proving foreign law at trial
Noting that foreign law features in a significant proportion of Commercial Court trials, the updated Guide confirms the court’s desired approach to avoid parties relying on full expert reports and cross-examining experts, which are usually far from necessary. Expert advice is therefore limited to relevant sources of foreign law, legal principles of interpretation and status of sources (not submissions). In some cases, the court can take judicial notice of the parties’ agreement as to the nature and sources of foreign law and receive submissions at the hearing.
6. Changes to the scope of skeleton arguments
Emphasis is placed on the parties considering whether it is appropriate to agree factual narratives at the time of the Pre-Trial Review, or otherwise, prior to exchange of skeleton arguments. This is with a view to the skeleton arguments then being able to focus on the law and the matters in dispute, with the agreed narrative being taken as read.
7. Arbitration claims
In a desire to limit unmeritorious Arbitration Act claims, a restriction on the use of section 67 and section 68 applications has been introduced. Section 67 applications are deemed appropriate only in cases where there are serious grounds for a contention that the matters relied on do affect the substantive jurisdiction of the tribunal (see Sierra Leone v SL Mining). Further, the latest edition of the Guide reiterates the court’s power to dismiss an arbitration claim without a hearing for section 67 and 68 applications that have “no real prospect of success”, with a right to apply to have such a decision set aside.
8. Application of the Disclosure Pilot (PD 51U)
The disclosure chapter of the Guide now assumes the application of the Disclosure Pilot, which was introduced in 2019. Accordingly, parties are required to use a Disclosure Review Document (DRD) to identify, and seek to agree, Issues for Disclosure. The DRD should be kept simple and concise. The court expects the List of Issues for Disclosure in the DRD to be shorter in most cases than the list of issues in the List of Common Ground and Issues and may consequently disallow the costs of any unnecessarily lengthy or complex DRDs. Parties are also required to consider the financial value or general complexity of the claim to assess whether it may be treated as a Less Complex Claim for the purpose of disclosure.
9. Remote and hybrid hearings
In another example of the court adopting practices brought about by the COVID-19 pandemic, the use of virtual or hybrid hearings has been endorsed. Further, the Guide specifies that the use of video-link evidence should be considered where witnesses live abroad, and their evidence is likely to last less than half day. Parties should be mindful however that the right to use video-link evidence is not automatic. A party proposing to call evidence by video link should prepare and serve on all parties, and file with the court, a memorandum which (1) deals with the matters outlined in the Video Conferencing Guidance contained in Annex 3 to PD 32, and (2) sets out the proposed arrangements.
10. Courts want to see more advocacy from junior lawyers
In a move that will be welcome news to aspiring advocates, senior lawyers have been asked to give more exposure to junior members of the team in relation to case management issues, as well as trial. The Guide specifically notes that junior advocates are encouraged to undertake oral advocacy, and consideration should be given as to whether they can act as the sole advocate in respect of case management issues.
While adopting some of the major changes brought to litigation in the last two years, the new edition of the Guide also sees a return to fundamentals. Parties are required to co-operate at all stages of litigation, continuously assess the merits of their respective cases, and streamline their approach to evidence and trial preparation. The court has laid down a marker that while certain practices have come to be the status quo, they do not reflect the court’s will. Accordingly, encouragement is given to parties and junior advocates, as the future of litigation, to balance tradition with innovation.