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An interview with Mr Justice Birss: part 2/3: legal insights

I was delighted to have the chance to put a few questions to Sir Colin Birss, judge of the High Court Chancery Division and nominated judge of the Patents Court.

In part 1 of my interview with Sir Colin, he talked about his career and interests. In part 2, he gives some perspectives on current developments in litigation procedure, notably the Shorter and Flexible Trials Pilot Schemes operating in the Rolls Building courts until 30 September 2017. He highlights some potential benefits of the schemes. Finally, in part 3, Sir Colin considers what the future might hold for civil litigation in England and Wales.

Jackson has been the big story for three years now, which seems incredible – it has flown by. We might have thought that that was the end of reforms for a while but now it seems that it was only the beginning. Three years on from implementation of the Jackson/civil litigation reforms, what is your assessment of how they are working?

One of the critical things from my own personal IP perspective is that the Jackson reforms were the vehicle that led to the reform of the Patents County Court in 2010. The fact that Jackson LJ’s reports picked up on the proposals from the IP Court Users’ Committee is probably what made the reforms happen. That was significant in the world of IP.

As far as the wider things, there is the whole issue of costs management. It remains something that obviously divides views. I know that because I hear people expressing those views. Some people like it and some people don’t. As a Chancery judge I don’t see as much case management as the Chancery masters do. Patents cases and big ticket Chancery cases don’t tend to have a lot of costs budgeting, so I am wary about commenting in general, but those times I have done it, it seems to have worked extremely well.

Another critical thing is disclosure. That does seem to be something in the reforms which hasn’t been picked up as much as one might have expected. The fairly fundamental change to the CPR (the introduction of the menu of options) doesn’t really seem to have been grasped.

Turning to your experience of Patents County Court reforms, in your view, what were the key benefits?

In my view, one of the less obvious lessons from the PCC and the IPEC – that bears on what we’ve been talking about – is that it is possible for legal businesses to maintain their overall turnover by doing a larger number of smaller cases (or cheaper cases), rather than a small number of large cases.

We had exactly this with the PCC and the IPEC. Initially, there were firms who said, “We can’t do this” – they felt that their business model was for cases to cost a certain amount, and that they could not be in a court where the cases cost significantly less. However, what has clearly happened is that the bigger law firms are in the PCC/IPEC. They can make it make sense economically because they do a larger number of smaller cases. And I think that is an important insight.

The models in some law firms are based on the expectation of cases making a particular amount of money – the answer is that you can still work at the same rate and do the same amount of work but you have less invested in one case.

It is certainly true that you can get wider experience that way too. My experience in the IPEC/PCC shows that younger solicitors in particular have a huge amount to gain from that kind of work. They get more experience and more responsibility, earlier, doing those smaller cases. The real advantage of that can be in the medium-sized law firms. In middle-sized firms, they really can get their young lawyers to run cases, because the cases are smaller, and they gain a lot from it.

That is based on personal experience of being the generation I was in the IP Bar. When the PCC started in 1990 (although it ultimately wasn’t a great success in the 1990s, it did start then), it was quite busy for three or four years. Those three or four years coincided with the start of the careers of myself and others in my cohort in the IP world. That is what we did. We were handling cases on our own – cross-examining experts as barristers and, as solicitors, running cases – things that people of our age and experience would never have done. And that is coming back again in IPEC, and it is great.

Have lessons from that experience formed part of the rationale for the Shorter and Flexible Trials Pilot Schemes?

There is no doubt about that – I have said that and others have said that – and it is true.

The history of the pilots is that they came out of the Financial List. There was an initial consultation on the Financial List and one of the things that came back from the consultation was – and this is now nothing to do with IP obviously – the message, “We want, if we can, to be able to have trials coming on faster, at lower cost, and shorter”.

It is about speed and certainty: commercial certainty. Businesses often prize certainty. Businesses need to make decisions. That is a lot to do with bringing a case on quickly, if you sensibly can, and fairly can. That impetus came from there.

At that point, it was appreciated (not by me – I wasn’t involved at that stage) that this desire was applicable not just to the Financial List but across the board in the business courts (the Rolls Building courts). What was then done was that a working group was set up in the Rolls Building, by The Chancellor of the High Court, specifically to look at this strand, widen it and take it forward. That is where it came from. I became involved at that stage. I can’t second guess why the Chancellor put me in that group but it might have had something to do with my experience in the PCC.

I knew about the PCC. We also looked at what is done in Australia, and how arbitration is done. The working group was led by Hamblen J together with myself, Edwards-Stuart J from the TCC and Jay J from the QBD, and also included Ed Crosse from Simmons & Simmons and Sara Cockerill from Essex Court. The group specifically looked at the ideas, came up with proposals, and held consultations. That ultimately led to the CPR pilot schemes. They were approved by the JEB (the Judicial Executive Board) and the CPRC. That is where it came from.

Could you briefly outline some of the key features of each scheme?

There are two schemes. They are distinct. They are both pilots. The idea is for them to be run for two years, and try to learn from that and see how it works.

Taking each in turn:

The Shorter Trials Pilot Scheme

Taking the shorter trials scheme first, there is meant to be a compressed pre-action stage (sensible correspondence – a letter and a reply). You should tell your opponent that you think this is a suitable case for the scheme, so they know what is going on. You issue the case in the shorter scheme. The big picture is that, as a claimant having chosen it (assuming that it is a suitable scheme and the other side does not object), you will have a prompt case management conference, and streamlined procedures, including for disclosure. The trial will be within eight months of the CMC, it will be no more than four days long, and you will get judgment within six weeks. The idea of that is to have a compressed timetable with a view to this being for business cases. That is the overall structure.

Obviously, the compressed timetable – four days of trial including reading time – means that you’re not going to have extensive oral cross-examination, but you can have some. That is exactly how the PCC/IPEC system operates: not abolishing cross-examination or disclosure, but limiting it to what is really really necessary. You can apply a cost benefit test, if necessary, to think about what disclosure is really necessary, based on the issues.

The CMC will review the issues and make sure that the case is streamlined in the appropriate way. Obviously, if the case is going to involve large amounts of oral evidence or large amounts of disclosure it won’t be appropriate for the scheme. But, if not, there is no reason why it should not be run under the pilots.

And there is no costs budgeting. But there is summary assessment instead – not detailed assessment. The reason for no costs budgeting is that it is trying to strip back a procedure down to its barest essentials to make it something that can be done within a commercially realistic timescale. That is the idea.

There is no general search obligation for disclosure, but the idea is that parties will be required to give appropriate disclosure. That balance of making sure that appropriate disclosure is given but not having the enormous disclosure you sometimes have is obviously difficult, but, again, lessons from things like the Australian experience and the IPEC show that it can be done.

The other element is that it is a docketed system. That is helpful. Experience shows that having the same judge doing the case management and the trial tends to reduce the amount of time that the judge needs to read into the case, and gives you consistent case management. That is the shorter scheme.

The Flexible Trials Pilot Scheme

In a way, the flexible scheme is easier to explain. There is a default arrangement but the idea is that the parties are being encouraged to agree to different ways of having their case tried.

The philosophies are court control (the shorter trials scheme) as against party control (the flexible trials scheme). If you can agree something for an arbitration, why not do it in court?

Ultimately, it is under the control of a judge, so the courts won’t allow silly proposals.

Someone asked me whether this is really just trying to encourage people to do something that they can already do. To some extent, both of the pilots are a bit like that – especially the flexible scheme. This is a way of really trying to encourage people to do it. People said that they were interested, so here it is.

How flexible is it? Could you say that you want hot tubbing for example?

Yes – absolutely! To some extent, that is a relatively unexciting example. Those sorts of things – why not?

So you can propose anything?

The trouble is that it is always easy to think of silly things: clearly, parties can’t agree to abolish contempt of court, for example!

But why not say, “Well we won’t have cross-examination in this particular case”? Of course, there are many cases for which that won’t be appropriate. And, of course, parties shouldn’t agree to it if they don’t want it – but if it is sensible, then fine.

Arbitration can have large disputes decided in a short amount of hearing time. It is not perfect – it can be expensive for example – it is not a panacea, but it is notable that, in the commercial world, significant commercial organisations have what are significant disputes resolved in what, at least in comparison with the court, can be an extremely streamlined approach.

Of course there are reasons why people come to court precisely because they don’t want that kind of truncated procedure. That is not wrong.

I probably sound like a bit of an old record but it is interesting seeing the PCC/IPEC system – which has an essentially arbitrary two-day trial length – the people who were the hardest to convince actually were the experienced lawyers. The clients got it immediately. You could see – they thought, “Two days in court. That seems fine. Perfectly sensible.”

It is partly an expectations thing. If you don’t have the expectation of many weeks in court, then you don’t miss it. Of course – I keep saying this because I think it is an important thing – there absolutely are cases which require substantial cross-examination of witnesses, which takes time, and require significant disclosure. This is not trying to prevent that from happening.

But there equally are many cases, in my experience, where a bit of cross-examination can be very effective. You don’t necessarily need a whole day of cross-examination.

Part of it is for witnesses to know that they are going to be cross-examined when they are giving their evidence and signing their witness statements. There is a big difference between witnesses who don’t believe they are ever going to be cross-examined and witnesses who do, so that is crucial.

Again, I found cross-examination of half an hour to an hour (or an hour and a half to two hours sometimes) was effective in the PCC – and it was the sort of cross-examination that, in the High Court, would have taken a day or even longer.

You just have to ask the real questions.

How would you encourage lawyers to engage with these processes? So far only a few people have been brave enough.

The fact is that the schemes are new and, not inappropriately, law is conservative – you might not want your client to be the “guinea pig” necessarily. That is not an easy thing to be.

On the other hand, personally, I am sure that there is a cohort of business cases out there for which these schemes would be extremely useful and would permit clients to get their disputes resolved in a commercial timetable at a commercial cost.

It seems obvious to me that that is the case. It is a question of encouraging people to use them.

I found that the reforms in the PCC/IPEC were easier to start in a way as there had been a lot more publicity before it was reformed, and it was a much smaller audience, but it still took a while. I think it took from about October 2010 to March 2011 for the first trial (that was a transfer in). It took time for people to see judgments and start thinking, “Oh yes – actually we’ll use this.”.

I’m not surprised that the numbers are small currently. It was a standing start from last October, more or less.

My impression from talking to people is that, when the schemes are explained to them, and when they think about them, they are actually enthusiastic.

This came from serious consultation with some significant litigants and law firms saying that they wanted something like this. People are positive about the pilots. The difficult thing at the moment is translating that positive reaction to actual results.

I’m optimistic. I think people will start using the pilot schemes. There has now been Family Mosaic Home Ownership Ltd v Peer Real Estate Ltd, in which two parties agreed to put a case into the Shorter Trials Pilot. That is how things start. And that was not the first case. The first one using the Shorter Trials procedure is in the Mercantile Court and there has been a case started in the Patents Court too.

So it is beginning…

In the longer term, where might these pilots lead? Do you think similar initiatives might be extended to other courts, for example?

They are pilots, because no one knows how they will work.

If they were wildly successful then promising that every case will be done in a certain timescale could create problems. That is one reason why they are pilots. The idea is that, hopefully, it will pull in cases that would have been bigger and make them smaller, which should balance out, but we don’t know, as it has never been done before. That would be a nice problem to have – if it was too successful.

The idea is to learn the lessons from it. The lessons could be that, although people say they are interested, that doesn’t translate into actual action. I would be sad if that happened, but, if that is the lesson to be learned, that is the lesson.

If the lesson is that the pilot schemes need to be extended by a finite extra period, as people are starting to use them, but they just need a little more time, then that is another possibility.

It is hard to answer until we know the lessons learned. We need to see a few cases work through.

One of the concerns raised was that the schemes looked great and everyone might go to the Rolls Building courts, when they should be going elsewhere, and that could be a problem for other courts. That hasn’t happened yet – we’ll see!

Courts and Tribunals Judiciary Practical Law Dispute Resolution Beverley Barton Mr Justice Birss

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