Commercial & Chancery Special Report: The big issues
16 March 2009
3 December 2013
1 November 2013
Lessons from the Julstar decision and government position on penalties for Franchising Code breaches
9 January 2014
28 October 2013
10 April 2014
Lawyers provide a service. Competition ;from ;other jurisdictions is relentless. While the English legal system offers intrinsic attractions, it is a mistake to assume that clients are blind to the costs of litigating in England.
In January 2007 the Commercial Court Users Committee set up a working party following the collapse of two high-profile Commercial Court cases. The working party’s recommendations were adopted by the Commercial Court for all actions for a trial period from 1 February 2008.
The one interesting change was the list of issues produced after pleadings and before the case management conference (CMC). The working party identified one of the factors that led to its proposals for a list of issues as follows: “The length and complexity of statements of case in even ‘average’ cases in the Commercial Court… has increased, is increasing and ought to be diminished. The prolixity of statements of case means that they become virtually unreadable.”
It identified three reasons for this: going beyond the basic requirement to plead background facts; arguing the case in the pleading; and trying to avoid pleading points with the protection of everything but the kitchen sink (not their words). Most will recognise the pleading problem is genuine and growing.
The list of issues is more than an addition to the pile of increasingly expensive documents that must be generated early in Commercial Court actions. In the words of the working party’s report: “The list of issues should be the key working document in all Commercial Court cases… [it] will be settled at the first CMC with the active permission of the judge. Thereafter it will be a court document… Once [it] has been produced, the pleadings will have only secondary importance.”
Brave words. Too brave, perhaps. A review of the proposals in January 2009 identified the list of issues as controversial. Mr Justice Andrew Smith’s subsequent note emphasised that the list of issues should be neutral (presumably to head off attempts to ‘win’ the drafting process); it can start off general and be refined as the case proceeds; the first draft should, however, identify the key issues and the case’s structure; and (notably) the list of issues is not intended to replace the pleadings.
Should the Chancery Division adopt a list of issues? In April 1995 the Chancery Guide was first published. Section 3.5 recommends that, after discovery, the issues, documents and oral evidence required to prove them should be identified and any advocate engaged be instructed to produce an advice on evidence. It is a long time since I was instructed to produce an advice on evidence.
The benefit of an advice is to focus minds on what is genuinely at issue and to help in trial preparations. The list of issues does this in a form that both parties agree to. I baulk at the suggestion that it could replace pleadings at trial; that is a step too far. But as a tool to assist the court and the parties to better focus on a case prior to trial, it can have a real benefit, much like the first sections of an advice on evidence.
For example, the list can focus tight disclosure and specific disclosure requests and identify precisely expert evidence issues (avoiding the oft-seen spectre of experts’ reports passing each other by like trains on different tracks). It can assist the parties in reining in witness statements, although
it should not prevent the inclusion of background contextual material, or non-contentious contemporaneous material, which are vital in understanding a dispute. And it provides a template for part of the skeleton arguments at trial. Nevertheless, the list is a means to an end, and not an end in itself.
Once it has served its pre-trial purposes, the parties should discard it.
However, the list of issues does not cure the problem of prolix or diffuse pleadings – it is a sticking plaster. A cure must be more radical. The particulars of claim most shapes a piece of litigation. If it is prolix, diffuse or unstructured, the case is harder to manage. I suggest that a particulars of claim is filed at court prior to service. A judge reads it, not for legal merit (they would not able to strike parts of the claim out), but for focus, succinctness, clarity, chronological sequence and for whether unnecessary material has been pleaded. If the judge is satisfied, the pleading is served. If not, it goes back to the pleader, marked ‘could do better’. The same goes for the defence.
How many of us would not tighten up our pleadings if faced with ‘could do better’? Very few. The prospect of endorsement would improve pleadings. This would require a considerable commitment from the judges, but if they want to manage cases, this could be the most effective way of doing so.
Gregory Banner is a member of the Chancery Bar Association and a barrister at Maitland Chambers