Following the successful pilot between 2015 and 2017, the Business Court in England and Wales have now embedded in the High Court procedures a couple of shorter and more flexible litigation procedures, aiming to simplify the court and trial preparation processes and to bring cases to a swifter trial and judgment.
Known separately as the Shorter Trials (STS) and Flexible Trials (FTS) Schemes, these have introduced a simplified court procedure that minimises factual and/or expert evidence. The STS provides a structure and timetable that aims to provide a trial and judgement with about a year from the commencement of proceedings where a trial length of no more than four days, including reading time, is required.
The FTS provides a slightly lower level of streamlining applicable to all cases, including focusing on the shortening of trial lengths by the reduction in oral evidence and submissions, but the aim of both Schemes is to ‘achieve shorter and earlier trials for business related litigation, at a reasonable and proportionate cost’.
The focus of this article is on the STS as this provides a more compartmentalised and therefore more focused regime than the FTS for efficiently disposing of cases (the author handled the very first STS case to trial and judgment in the Commercial Court). Under the STS:
- Parties can issue cases directly onto the STS, or transfer existing cases across.
- Scope for parties to extend the timetable is limited.
- A simplified pre-action procedure replaces any otherwise applicable pre-action protocols.
- The length of statements of case, witness statements and expert reports are restricted (for example, a maximum of 20 pages for the Particulars of Claim).
- All proceedings will be heard by the designated judge as far as possible to reduce reading time. • Applications will generally be dealt with on paper.
- Disclosure is limited to documents relied upon or specifically requested.
- Trial length is restricted to 4 days (including reading time) and cross-examination is restricted.
- Costs budgeting will not apply unless otherwise agreed.
The STS is not mandatory and whether the case is suitable for the STS is at the court’s discretion. Cases involving multiple issues, multiple parties, public procurement issues or fraud (and dishonesty) allegations are identified as not suitable for the STS.
From experience, for claimants the Schemes offer a procedural route to swift hearings and determinations; recalcitrant defendants must be aware of short turnaround times for protocol responses and defences and the need for an early raising of any objection to the applicability of the Schemes, normally not later than in advance of the first Case Management Conference (CMC). The real attraction is the court driven target of a trial and issued judgment within a year of issuing proceedings.
The Courts’ appetite to support these alternative processes are vital but this is already clearly signposted by the Court’s review of the relevant principles to STS application in the 2018 case, Excel-Eucan Ltd v. Source Vagabond System Ltd.
In that case the defendant argued that the procedure was not suitable based on the complexity of the case, the need for disclosure and the likely length of trial.
The Court disagreed: noting that the length of the statements of case suggested complexity, it pointed out that the real nub of the STS rested on whether the case can properly be contained within the trial estimate of no more than four days and whether it truly required extensive disclosure and/or reliance upon extensive witness or expert evidence.
He concluded that neither the over-lengthy pleadings, nor the potential disclosure, nor the need for five witnesses amounted to sufficient complexity to make the case unsuitable for the STS. The critical factor for deciding such suitability was whether the case could be heard within four days, and the judge hearing the application concluded on the facts that four days was enough.
We do of course now have the disclosure pilot (which started in January 2019). The aims of that focus on seeking to streamline and limit disclosure shares the STS aim of simplifying litigation processes and saving costs.
Whilst the disclosure pilot achieves this aim by providing a range of disclosure options, note that under the STS, key disclosure duties are directed instead to serving a bundle of core documents with their pleadings and make specific requests for any additional disclosure.
There has been in recent times, quite rightly, much criticism made of expensive procedures and the time that it takes to reach trial in the English Courts. What the STS and the judicial support for it shows is that the culture of litigation is changing and is being driven by those sitting at the top, the Judges.
For more information, please contact Stephen Netherway, Partner in the Litigation & Dispute Resolution team.