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The Shorter & Flexible Trials Pilot Schemes: a progress report

It is nearly one year since the introduction of the Shorter and Flexible Trials Pilot Schemes in the Rolls Building courts. Practical Law Dispute Resolution editor, Beverley Barton, asked Mr Justice Birss, who has taken an active role in developing the schemes, for:

  • An update on how the schemes are working.
  • How they might be developed.
  • Why practitioners should consider using them.

Rationale for introducing the schemes

The Rolls Building aims to be a centre of excellence for business litigation. On 1 October 2015, the Shorter and Flexible Trials Pilot Schemes were introduced with that in mind.

The impetus for these two schemes came from the consultation which led to the new Financial List. Respondents to the consultation expressed a wish for shorter and earlier trials, at a reasonable and proportionate cost. Both pilot schemes seek to meet that need in different ways. They apply to all the courts in the Rolls Building (that is the Chancery Division (including the Patents Court), the Commercial and Admiralty Court, the Financial List, the Technology and Construction Court, and the London Mercantile Court).

In a nutshell: key aspects of the schemes

The Shorter Trials Scheme

The Shorter Trials Scheme (STS) involves tight control of the litigation process by the court, in order to resolve the dispute on a commercial timescale.

The claimant chooses to start a case in the scheme or, once proceedings have begun, either side can apply to transfer. Inappropriate cases can be transferred out. Some key features of cases within the scheme include:

  • Cases  are managed by a docketed judge with a trial within about 10 months of issue and judgment six weeks thereafter.
  • Disclosure is available but is tightly controlled.
  • Oral evidence at trial is kept to the minimum necessary to do justice.
  • All applications apart from the case management conference (CMC) are dealt with on paper unless a hearing is really necessary.
  • The maximum length of trial is four days, including reading time.
  • All costs are assessed summarily rather than being subject to costs management.

Part of the inspiration for the STS comes from a similar scheme working in Australia, and from the success of the Intellectual Property Enterprise Court (IPEC) in demonstrating what can be achieved when the court exercises greater control over procedure. Since 2010 the IPEC has been handling disputes which would, ordinarily, have required a trial lasting a week or even longer, and dealing with them at trial in a day or two. The cases there are ready for trial within six months of the CMC. The IPEC has been particularly successful in improving access to justice for smaller and medium sized enterprises. The STS makes a similar procedure available for all business cases.

The Flexible Trials Scheme

The Flexible Trials Scheme (FTS) is aimed at placing the parties in control, subject to any necessary intervention of the court. The scheme enables parties, by agreement, to adapt the procedure to suit their particular case. It does not require parties to be any more imaginative than to think: “if this could be done in an arbitration, why not in court?”.

First year statistics

So far, ten cases have been issued in or transferred into the STS. Five of these are in the Commercial Court, four are in the Chancery Division and one is in the Technology and Construction Court.

There has been one trial judgment (Vitol v Africa Oil & Gas, HHJ Waksman QC in the Commercial Court) and one reported judgment dealing with transfer (Family Mosaic v Peer Real Estate, Birss J in the Chancery Division).

Given that public awareness of the schemes really only started in early 2016, and given the normal lead times in civil litigation, this number of cases is a positive start for the STS.

So far no cases have taken advantage of the FTS.

Possibly, the schemes have not come to the attention of practitioners as much as might have been hoped. I would encourage them to look at PD 51N and consider the potential benefits.

Fine tuning: changes taking effect on 1 October 2016

The Pilot Schemes are governed by PD 51N. In July 2016, the Civil Procedure Rules Committee (CPRC) approved a number of changes to that Practice Direction, which are due to come into force in October 2016:

  • The main change is to extend the schemes for a further year. Originally, they were due to come to an end in 2017 but, in light of the slow start, the schemes will be extended to 30 September 2018.
  • The other significant change due to come into force in October 2016 relates to the operation of the STS in the Chancery Division, and the role of Chancery Masters. For cases within the division, the amended rules will permit masters to transfer cases into the STS, and will permit them to hear trials in the STS itself, with the parties’ consent. The aim is to save costs. A party who starts a case in the STS will be entitled to a trial by a judge if they wish and that will not change. However, normally in the Chancery Division cases are first seen by masters and so they will be well placed to identify an action which, although not commenced in the STS, may be suitable for it. From October 2016, the master will be able to deal with such a transfer directly, saving cost and time. In addition, the action may be suitable for trial by a master in accordance with the Chancery allocation procedures. The amendment permits that, as long as both sides consent.
  • Two technical rule changes are to be made as well. One provides that the schemes’ rules apply to cases commenced in, or transferred into, the relevant scheme before the end date. This clears up a doubt about whether the rules would continue to apply to a case started in either scheme which had not reached trial before the scheme closed. They will continue to apply.
  • The  other rule change provides that, for a case transferred into the STS, the statements of case do not necessarily need to be re-pleaded after transfer. Experience in the IPEC (which has similar rules on statements of case and transfers) is that cases generally do not need to be re-pleaded after transfer even though the statements of case may not be in a form which complied fully with the scheme’s rules.

Benefits of the schemes: a call for practitioners to embrace the new procedures

The Shorter and Flexible Trials initiative as a whole is aimed at improving access to justice for business. The initiative also seeks to foster a change in litigation culture: a recognition that comprehensive disclosure and a full, oral trial is often unnecessary for justice to be achieved.

Using the schemes should produce significant savings in the time, cost and complexity of civil litigation.

I would say that, at its heart, the Shorter Trials Scheme is about access to justice. My experience of business litigation is that there is an unmet need for a way to determine mid-range business disputes in a commercially realistic timescale and in a brisk way which still preserves common law trial principles (disclosure and cross-examination) but stops them getting out of hand. That is the Shorter Trials Scheme.

Another benefit for larger cases is that it bridges a gap between summary judgment and a full blown trial.

As for fostering changes in litigation culture, many of the approaches formalised in the pilot schemes are possible under judges’ broad case management powers. In any proceedings, if parties approach the judges with sensible proposals for streamlining procedures so that justice can be done in the most efficient way, at proportionate cost, they are likely to look favourably, and seek to give effect to them.

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

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