UK: A Streamlined Court Procedure For Business Disputes

Anyone involved in litigation can testify to how protracted and costly it can be. The Shorter Trials Scheme (STS) pilot currently running in the Rolls Building courts is aimed at addressing this.

A shorter and earlier trial, a designated judge who manages the case, limited disclosure and limited and written witness and expert evidence will be the order of the day. Cases issued in the STS should come to trial within 10 months of issue of proceedings with judgment being delivered within six weeks thereafter.

Disclosure, evidence and trial are generally the most time-consuming elements of dispute resolution to deal with and so account for the greatest proportion of the costs incurred. By heavily streamlining these areas, the STS is intended to offer dispute resolution to businesses on a commercial time scale and at proportionate cost.

The STS will be most appropriate for relatively simple commercial and business related disputes which do not hinge on expert or factual evidence; are not document heavy; and where speed of resolution is required, perhaps in order to maintain a business relationship or avoid damage to reputation.

It is not suitable for cases that involve allegations of fraud or dishonesty, or involve multiple issues or multiple parties, or that might not be fairly tried on the basis of only limited disclosure and limited oral evidence.

STS - the key features:

  • Type of case - the STS is intended for business cases issued on or after 1 October 2015 in the Commercial, Technology and Construction or Mercantile Courts or the Chancery Division. Business is widely defined and covers a wide range of cases. Purely private, non-commercial matters are not included and neither are cases in the Intellectual Property Enterprise Court (it has its own similar procedure) or public procurement cases. As above, for cases including allegations of fraud or dishonesty, cases requiring extensive disclosure or reliance on extensive expert or witness evidence, and cases involving multiple issues or parties, the STS will not be an appropriate procedure.
  • Designated judge - each case will have a designated judge who will manage the case, with the aim of providing greater continuity, efficiency, judicial understanding and control over the case and the timetable. The designated judge will also be the trial judge whenever possible.
  • Opt in/transfer out - the STS is not mandatory. A claim can be issued in the STS (in the appropriate court) or either party can opt in, apply to transfer out or the court can, of its own initiative, strongly suggest that the case be transferred into the STS. Any application to transfer out on the basis that the case is not suitable for the STS should be made before the first case management conference.
  • Pre-action protocols - do not apply although a letter of claim should still be sent by the claimant providing the defendant with succinct but sufficient details of the claim so the defendant can investigate the allegations. The letter of claim should include notification of the intention to adopt the STS. The proposed defendant should respond within 14 days confirming whether it agrees to or opposes the STS.
  • Length of pleadings - should be short (no more than 20 pages) and the claim form and particulars of claim (with core documents) should be served together and promptly after the defendant's response to the pre-action letter. The defendant has 28 days after acknowledging service to file a defence and any counterclaim.
  • Early Case Management Conference (CMC) - this should be fixed for a date approximately 12 weeks after the date the defendant is due to acknowledge service of the claim form. The court will review and approve a list of issues (compiled by the claimant and agreed by the parties if possible), resolve any disclosure disputes, consider Alternative Dispute Resolution, give directions and fix dates for the pre-trial review and trial.
  • Limited disclosure - an arbitration style approach is taken, rather than that usually provided for in the Civil Procedure Rules (CPR). Only those documents relied upon and those requested by an opponent and either agreed or ordered need be disclosed. It appears that there is no obligation to volunteer adverse documents although these could be specifically requested by an opponent.
  • Applications - will be primarily on paper and/or conducted by phone, so saving time and costs.
  • Trial date - will be fixed for a date no more than eight months after the CMC and will be no longer than four days, including reading time.
  • Evidence - generally factual and expert evidence will be in writing and of limited length, unless ordered otherwise. Expert oral evidence will be limited to issues identified at the CMC.
  • Extensions of time by agreement - will be limited to a 14 day extension for service of the defence and a single seven day extension to any other date set by the rules or directions. The intention is to ensure that the timetable is adhered to. Time can be further extended by the court, but only if there is good reason to do so.
  • Judgment - will be handed down within six weeks of the trial or any later final written submissions.
  • Costs - costs budgeting will not apply unless the parties agree otherwise. The costs of the entire case will be assessed summarily by the trial judge.

Flexible Trials Scheme

An alternative to the STS is the Flexible Trials Scheme (FTS). The FTS was introduced at the same time as the STS; like the STS, it is applicable to all claims started in the Rolls Building courts, but it is a less streamlined process than the STS.

The FTS procedure enables parties to agree to adapt the trial procedure to suit their particular case, to achieve a more simplified and speedier trial than is currently provided for by the CPR. This includes limiting disclosure in a similar (albeit wider) manner to that in the STS, and minimising the amount of witness and expert oral evidence and submissions at trial.

A standard trial procedure is set out in the FTS and can be followed in full or varied by agreement. Parties intending to use the FTS should agree to do so in advance of the first CMC.

Again the scheme is voluntary with the aim of providing flexibility and choice to the parties and reducing the costs and time required for trial by streamlining what currently are the most costly and time consuming aspects of litigation.

Comment

Particularly complex cases or cases requiring wider disclosure will not be suitable for either of these two schemes. There will, however, under the 'standard' CPR, be a number of cases where the cost (in both legal fees and wasted management time) of running those cases is likely to be disproportionate to the sum in dispute.

If the case is sufficiently simple, the STS may provide a suitable alternative, and be well worth using. Certainly it could be a better alternative than deciding simply to write off a debt, or feeling obliged to agree an unsatisfactory compromise, just to avoid high costs.It is a viable alternative to expensive full blown litigation where even reasonably incurred costs in fighting the case may then not be allowed as recoverable by the court, at the end of the case, being then adjudged to be disproportionate to the sums involved and so held to be irrecoverable by the winning party.

Don't forget though, neither scheme is compulsory and there needs to be agreement on both sides to opt, or stay, in. Once in the STS, the parties and their representatives are also expected to co-operate with, and assist, the court in ensuring that the proceedings are conducted in accordance with the STS and its short timetable, so that the claim can be dealt with in the most efficient and cost-effective way possible.

Claimants should, however, be aware that the court is alive to the risk that a well-prepared claimant may attempt to use the STS to "ambush" a defendant during the pre-CMC period. The court may sanction such behaviour in costs if it considers that a claimant has acted in an oppressive or unfairly prejudicial manner.

Both the STS and FTS pilots will run until 30 September 2017. Full details can be found in Practice Direction PD51N of the CPR.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
21 Sep 2017, Seminar, London, UK

Has Cloud replaced traditional outsourcing models? We will compare cloud to outsourcing, consider whether they have effectively become the same thing for many solutions and assess some of the advantages and disadvantages of each model.

3 Oct 2017, Seminar, London, UK

Join us over breakfast for our third retail-focused seminar.

17 Oct 2017, Workshop, Birmingham, UK

This practical workshop will take in-house counsel through the life of a brand, providing guidance on issues which regularly arise.

 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.