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28 July 2014
The Commercial Court working party on heavy and complex cases published its report and recommendations on 6 December 2007. They address all stages in the litigation process, from pre-action through to trial.
They will be put into practice in the Commercial Court, initially by way of a six-month pilot scheme, from February 2008. The judges of the court will then decide whether to continue the pilot or whether the reforms (or some of them) should be implemented permanently.
The working party was set up to take forward suggestions made at the Commercial Court Symposium, which was held on 30 October 2006 to look at the way so-called 'supercases' were run. There was wide support among delegates for various proposals, including the allocation of cases to specific judges, vigorous exercise of case management powers and control of disclosure, in particular electronic disclosure.
The working party has adopted a practical approach in its recommendations. If vigorously implemented, the new procedures will have a big impact on all cases in the Commercial Court, but particularly on heavyweight litigation. In particular, more 'hands-on' case management should mean that cases will be run more efficiently.
Saving time and costs
One of the key changes is the introduction of a new-style list of issues, which will be judicially settled at the first case management conference (CMC). Statements of case will thereafter be of secondary importance. The list of issues will be a key procedural tool throughout the case regulating disclosure, witness statements and expert reports. It is intended that this will assist the parties, and the court, to focus on the key issues from an early stage and prevent time and costs being wasted on the production of irrelevant documentation and evidence as the case progresses.
However, by requiring parties to focus their cases in this way, more work will be required upfront and there is a risk that there will be even more frontloading of costs than at present. It will therefore be important to evaluate whether the additional early costs are offset by savings overall and by more effective dispute resolution.
Another key issue addressed in the report is the control of disclosure, one of the most expensive and time-consuming aspects of litigation. The report supports a more 'surgical' approach to disclosure to put an end to the current situation, where large volumes of documents are often disclosed, produced at trial and then ignored.
If the court decides at the CMC that the size or complexity of the case demands it, the parties will be required to produce a schedule to assist the court as to whether disclosure should be restricted, or whether it should order disclosure beyond standard disclosure. This will in effect be a 'shopping list' of the disclosure each party is seeking, by reference to the list of issues.
If complied with, this seems a sensible procedure to enable the court and the parties to ensure that disclosure is kept within reasonable bounds and it should achieve a commensurate cost saving. The risk will be if such shopping lists are routinely required but then ignored, which would have the opposite effect on costs.
Keeping it brief
The report also stresses the need to keep both pleadings and evidence within sensible limits, again with a view to focusing on key issues and saving time and costs. Under the new procedures, statements of case should not exceed 25 pages without the court's permission. Witness statements must be as short as possible and should not have bundles of documents exhibited.
The court should always consider limiting the length of witness statements and expert reports. In appropriate cases it may even dispense with witness statements and instead order statements of the 'gist' of evidence and/or allow examination in chief at the trial. Both witness statements and expert reports should be drafted by reference to the issues in the list of issues.
This emphasis on brevity extends to the trial itself. No two-party trials should ordinarily be listed for more than 13 weeks. Outline opening arguments in such cases should not normally exceed 50 pages and should be structured in accordance with the list of issues. A maximum number of pages should also be imposed on written closing arguments. Opening and closing speeches should not ordinarily exceed two days. Time limits for examination of witnesses should be set whenever appropriate.
The working party considered whether to introduce a 'docket' system, whereby a case would be assigned to a single judge who would manage it continuously. However, this proposal was rejected in favour of the current 'two-judge team' for suitable heavy and complex cases.
The report emphasises that, at all times, one or other of the judges should be available to deal with CMCs, interim matters and the trial. The parties in a heavy and complex case should also be able to contact one of the two judges informally so as to deal with urgent matters or to seek guidance on procedural points.
Some will be disappointed at the absence of a docket system. However, so long as the two-judge system is consistently implemented, it represents a practical compromise between the need to ensure continuity in heavy and complex cases and a recognition of the practical demands on Commercial Court judges.
Fixing the flaws
This is a well-thought-out and argued report. At its core is a recognition that there are some fundamental flaws in the current procedures. The report makes many sensible recommendations, such as more rigorous control of disclosure and of the evidence of factual and expert witnesses.
Firms should familiarise themselves with the report and recommendations now, not only if they have cases in the Commercial Court, but also if they are involved in heavy and complex cases in the other courts of the Queen's Bench Division and in the Chancery Division. Experience has shown that practice and procedure in the Commercial Court often influences judicial approach elsewhere.
The success of the proposals will depend on whether the changes are embraced by the judiciary and enforced vigorously: after all, power already exists in the Civil Procedure Rules (CPR) to order much of what is suggested. It will be crucial for judges to be given sufficient time to master the key issues in the case, enabling them to take more active roles in case management. Equally, sufficient resources must be made available to implement the changes, including technological resources.
There will also have to be buy-in from both barristers and solicitors, who will need a significant change of mindset to make the reforms work most effectively. For example, compliance with the 25-page limit will require the drafting of statements of case in heavy and complex cases to be more focused and concise, and for this brevity in particular to be accepted and unchallenged by the other side. Non-compliance by either party will have to be addressed by the judge.
Overall I am cautiously optimistic that the recommendations will bring real improvements for Commercial Court litigants.
Sonya Leydecker is head of dispute resolution at Herbert Smith