A new pilot scheme seeks to take some of the time-saving
procedures in the Intellectual Property Enterprise Court (IPEC) and
apply them to the High Court. London has two courts that deal with
actions on patents and other IP rights. The IPEC is the junior one.
It started life as the Patents County Court in 1990 and more
recently was renamed and revitalized. The senior court is the
Patents Court, part of the Chancery Division of the High Court of
Justice, and therefore a pillar of the traditional courts
system.
The IPEC deals with cases in which the trial has a maximum length
of two days. Damages recovery is limited to £500,000, and
there is a cap on the recovery of legal costs from the losing
party. This costs cap is a maximum of £50,000. There are no
such limits in the High Court.
The recent reforms of the IPEC also include procedures giving the
judge a greater measure of control than previously. They are
generally considered to have been a success. The court has plenty
of customers, who by and large seem happy with the services
provided.
The High Court is somewhat at the opposite extreme, in that there
are no limits on trial length, and the parties largely dictate the
speed and length of cases. Although there have also been reforms,
some of the procedures can in this day and age seem clunky. The
amount of evidence put before the court is largely in the hands of
the parties. Cases tend to be long and can turn out more expensive
than expected.
There have been murmurings recently for some of the IPEC-type
procedures to be airlifted into the High Court. This has now
happened, with the establishment of a “Shorter Trials
Scheme” (STS) in the High Court. It has been running since
October 2015. It is a pilot scheme, set to last for two years
although if it is popular then it is likely to be extended in some
shape or form. The lesson from the IPEC is that with proper case
management, actions which previously took many days at trial can be
disposed of in one or two days.
In light of the fact that the High Court has an unlimited
jurisdiction, the upper limit for trials in the STS has been
enlarged to four days (including pre-reading time for the judge).
There is no costs cap. The other new procedures are largely similar
to those in the IPEC but with some tweaks. The main features
are:
- The judge handling the Case Management Conference (CMC) will normally be the judge hearing the case at trial.
- Parties are encouraged to have applications dealt with on paper instead of at hearings.
- Disclosure of documents is limited. Initially the parties need only disclose those documents on which they rely. There is no “standard disclosure” like in a mainstream action. If a party thinks that the other party has relevant documents from the past that will help its case, and the other party does not disgorge them, it will have to make an application for specific disclosure.
- As in the IPEC, the judge will look at limiting the oral evidence at trial to identified issues or topics.
- The trial should take place within eight months of the CMC, and the judge will give a date for delivery of the judgment, within six weeks of the trial. This is quicker than the general run of cases in the High Court. The quid pro quo for jumping the queue is that STS cases takes up less resource than regular cases.
- Costs payable to the winner will be summarily assessed if not agreed. This will involve the parties exchanging schedules of costs after the trial, and at the post-trial hearing the judge will assess the relevant costs summarily. This eliminates the possibility of satellite litigation about costs.
- There is no requirement for costs budgeting during the pre-trial period. The costs management procedures currently in place are widely perceived as a wasteful box- ticking exercise. With the STS, schedules of costs are needed only after the trial. The costs landscape under the STS is low maintenance.
The IPEC’s costs cap can be an attractive feature for the
level of cases which that court deals with, but it can be a
disincentive for some parties. Rather than the High Court being the
only alternative, there is now a sort of halfway house.
This new scheme does not run only in the Patents Court. It applies
to other specialised lists including the Chancery Division as a
whole and the Commercial Court. Whether it is a success largely
depends on the amount of use that will be made of it. Claimants can
choose to designate a case as being within the scheme. The court
has power to transfer a case into the scheme. The court can do this
even if the parties do not propose it.
Our judges are well aware that in several areas of law,
particularly patent cases, there is competition with jurisdictions
elsewhere. In patent cases the main competitor tends to be Germany.
This shorter trials procedure goes a long way towards meeting the
concerns that many potential litigants have in England and Wales.
In principle, it should be applicable to quite a wide range of
cases. It has obvious attractions, but will wither on the vine
unless it is used.
There is also a second pilot scheme, called the Flexible Trial
Scheme (FTS). Unlike the STS, where the emphasis is on judge
control, the FTS allows the parties to adapt trial procedures to
suit their own particular case. The relevant model is arbitration,
the parties agreeing on the procedures subject to overriding court
control.
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