UK: Short But Mighty…?

The Shorter Trials Scheme (ST") is one of a raft of measures designed to improve the customer experience of civil justice.

In the face of ever greater competition between jurisdictions, the Woolf and Jackson Reforms sought to open up litigation procedure, demystifying it, and reducing costs and timelines into the bargain.  In developing the STS, their Justices Hamblen (as he was), Edwards-Stuart, Birss and Jay picked up the baton. With support from Sara Cockerill QC (Essex Court Chambers, now Mrs Justice Cockerill) and Ed Crosse (Partner, Simmons & Simmons LLP), they prepared the draft Practice Direction (51N, which also covers the Flexible Trial Scheme) for the pilot scheme. The pilot opened for business in October 2015 and, if you haven't had cause to test it out yet, fear not, at a conference on 2 July 2018 Mr Justice Birss announced the STS is now a permanent option for High Court litigation.

The STS aims to "achieve short and earlier trials for business related litigation, at a reasonable and proportionate cost."1a The focus on commercial timescales for dispute resolution is key but so too is maintaining the quality of decisions.

If it all sounds a bit familiar to IP lawyers...it is!

In establishing the STS, the High Court appears to have drawn on the highly successful Intellectual Property and Enterprise Court (IPEC) model, something which may not surprise more eagle eyed readers, given the role that Birss J played in establishing the new regime in IPEC.

Details, details, details

The STS is available in the Chancery Division (including the Patents and Companies Courts), the Commercial, London Circuit Commercial and Technology and Construction Courts in the Rolls Building. It is most suitable for time-sensitive cases of moderate complexity (given the four day trial limit) requiring little evidence or disclosure, where damages may exceed those recoverable in IPEC, or the costs caps are not desirable.

To achieve its goals, the STS employed a number of mechanisms, the most significant of which are:

  • Strict timelines - the desired efficiency and cost savings cannot be achieved without them, so this is a very desirable feature of the STS. They cover most phases of litigation including:

    • a defendant should respond to a letter of claim within 14 days;
    • the Claim Form and Particulars of Claim should be served promptly following a defendant's response to the Statements of Case;
    • 28 days after service of the Claim Form and Particulars the Defence must be served;
    • within 12 weeks of Acknowledgement of Service, the Case Management Conference (CMC) should take place;
    • disclosure requests must be exchanged at least 14 days before the CMC;
    • the trial must be no more than eight months after the CMC (and will be limited to four days);
    • judgment should be handed down within six weeks of trial; and
    • schedules of costs should be exchanged within 21 days of trial and then be assessed summarily at the final order hearing.

The parties are allowed to agree one 14 day extension for the Defence and one seven day extension for the other dates but that's it. Any further extensions are strictly at the court's discretion;

  • Reduced pleadings - Statements of Case are limited to 20 pages and any core documents should be attached;
  • Quick CMC and trial - these are listed promptly (the CMC is listed ASAP after the Acknowledgment of Service) to keep the case moving quickly;
  • Paper applications - other than those made at the CMC, applications should be decided on the papers and/or heard by phone;
  • Limited evidence and disclosure - unless otherwise ordered, fact and expert evidence is in writing and limited in length. Any oral evidence will be limited to the issues. Disclosure is also limited to those documents relied on, requested by the other party and/or agreed or ordered;
  • Docketed judges - this might have been one of the scheme's show stoppers, designed to increase continuity and efficiency, with all case management work and the trial itself conducted by the same docketed judge. However, the diary challenges involved mean this has was not achieved as often as hoped during the pilot; and
  • No costs budgeting - unless otherwise agreed by the parties the Precedent H costs budgeting regime of the general High Court does not apply to the STS. Rather, the parties exchange costs schedules no later than three weeks after trial, after which the trial judge summarily assesses the costs in the entire case.

Case allocation to the STS is via an "opt-in". A claimant must first select the STS route, though the court may encourage parties to opt-in where the case is appropriate but has been started in a different forum.

Birss J has confirmed the court may, on application to a judge, transfer existing "business cases" into, and out of, the STS under the overriding objective and its general case management powers1b. Such a flexible approach means parties can reassess the suitability of their case for the scheme as it develops. There remains something of a question mark as to the extent to which the court will, of its own volition, seek to transfer existing cases as they become suitable for the scheme. For example, in the designs case of Neptune v Devol2, Birss J proposed a transfer into the STS, but this only happened because it was subsequently agreed to by the parties. Other cases have been transferred into the scheme during the course of the pilot.

Pilot report card and prospects for the future

The STS pilot certainly got off to a promising start. The first case heard under the scheme, a compensation claim brought by a commercial bank3, was generally acknowledged as a success. The parties agreed to proceed under the STS, which led to a one day hearing, with limited disclosure and no oral or written witness evidence. Judgment, which praised the parties for their cooperative approach to the proceedings, was handed down in less than two weeks. In many ways this was the perfect example of efficiency and speed.

Initially, limited awareness of the STS resulted in a relatively low number of cases passing through the scheme. However, as the pilot progressed this changed and it proved a popular option for litigants.

In later cases heard under the scheme there appears to have been some evolution of the rules. The decision of Henry Carr J in Neptune noted that the case, which involved an allegation of dishonesty, would "not normally be suitable" for the STS. However, it was still heard within the scheme and "extensive disclosure was given and extensive evidence of fact and expert evidence was relied upon". While this approach is quite a departure from the procedure outlined above, the judgment made clear that cases involving more complex issues could be heard within the scheme, provided those cases are "controlled from an early stage by robust case management". The Judge also noted that in the specific example of Neptune, which involved liability in relation to multiple registered and unregistered designs, it may have been advisable to limit the trial to an "appropriate, and limited, selection" of those designs. There was no suggestion in that case that the Judge wished to transfer the case back out of the scheme, and the trial was heard within the requisite four day limit.

The success of the STS is likely to revolve, in part, around the way that discretion of the judges is exercised in STS cases. For example, again in relation to the Neptune designs case, the Defendant applied to amend its case quite significantly, and introduce expert evidence, at a hearing around halfway between the CMC and trial. In the IPEC, this is very unlikely to have succeeded, but in the STS the amendments and additional evidence were allowed (albeit with a warning as to the costs consequences). Outside of the Neptune case it is clear from the pilot that the STS can offer a faster and more cost-effective means of litigating business related cases of moderate complexity (as many IP cases are), where the damages or costs caps of IPEC are not desirable. This should be applauded; the courts making litigation more accessible and appropriate for a broader range of disputes is helpful, and keeping our courts competitive is great for clients with issues that need faster and more cost-effective resolution.

Comparison table

  General High Court Shorter Trials Scheme IPEC
Timescales

In excess of a year from issue to trial in standard cases - often 12-18 months

Trial within 12 months of issue, tight limits for scheduling of CMC, length of trial and judgment. Currently the quickest option

Generally takes 12-18 months from issue to trial

Pre-action

Pre-action Practice Direction applies

Truncated pre-action procedures, although practice direction still applies.

Penalty for not complying with Pre-action Practice Direction that the Defendant has 70 days for Defence

Pleadings

Standard pleadings where less detail is required than other options.

Pleadings expected to be thorough, but concise

Pleadings expected to be thorough, but concise

Case management

Not active case management

Active case management (preferably by a docketed judge)

Active case management with some innovative case management options available

Evidence

No limit on evidence of fact, though court's permission is required for expert evidence

Limited witness evidence. Expert evidence only if strictly required.

Extent of witness evidence and expert evidence considered by judge at CMC.

Disclosure

Standard disclosure

Limited or no disclosure

No standard disclosure, where specific disclosure is ordered will be limited to specific documents or classes of document

Costs budgeting / management

Precedent H costs management rules apply to all claims worth less than £10million

No costs budgeting

No costs budgeting but scale costs recovery

Costs recovery and damages

Costs recovery usually on a standard basis (but parties may be held to budget). No limit to damages recovery

Summary assessment of costs after trial. No limit to damages recovery

Costs recovery capped at £50k (based on phases), damages capped at £500k

Footnotes

1a Short and Flexible Trial Procedures Pilot Schemes Announcement, 30 September 2015, page 1.

1b Family Mosaic Home Ownership Ltd v Peer Real Estate Ltd [2016] EWHC 257 (Ch)

2 Neptune (Europe) Limited v Devol Kitchens Limited [2017] EWHC 2172 (Pat)

3 National Bank of Abu Dhabi PJSC v BP Oil International Ltd [2016] EWHC 2892 (Comm) (18 November 2016)

Read the original article on GowlingWLG.com

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