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28 May 2014
Nearly two years on, recommendations by the Commercial Court Working Party have largely worked, says Simon Davis
In December 2007 the Commercial Court Working Party announced a series of recommendations, intended to make sure that litigation, albeit adversarial in nature, was focused on the issues which really divided the parties.
The working party itself was formed only after a symposium had taken place and a detailed consultation exercise had been concluded.
The recommendations included that pleadings, save in exceptional cases, be no more than 25 pages in length, that a list of issues should be drawn up, settled by the judge, with disclosure of documents, witness statements and experts reports being tailored to those issues.
We recommended that the trial should be tightly managed, with a view to reducing the length of oral and written submissions, as well as the amount of time permitted for cross-examination.
Further guidance was then issued by the Commercial Court in order to make it clear that the list of key issues was not intended to replace the parties’ pleaded cases, that it is to be in neutral terms and that it can be added to when necessary.
There was then a pilot period in 2008 during which feedback was obtained from practitioners. Following this period of gestation, the April 2009 edition of the Commercial Court guide states on the very first page that it introduces changes “designed to implement recommendations made by the Long Trials Working Party”.
At paragraph D2 it is now said that the list of issues will be used “as a tool to define what factual and expert evidence is necessary and the scope of disclosure”.
The key feature of the recommendations has therefore been retained, but with further guidance to make clear that the list of issues is not intended to be an expensive straight-jacket, but instead a flexible road map for the parties and the courts.
For example, it is made clear that neither party should attempt to draft the list in terms which advance one party’s case over that of another and that therefore parties should spend as little time as practicable in drafting and negotiating the wording of the list of issues and keep clearly in mind the need to limit costs.
What will be interesting going forward is the extent to which these warnings are heeded.
If a party seeks to frame the list of issues in a way which is partisan and in truth an advocacy piece, it can expect criticism from the judge and possibly a costs sanction.
No one is naive enough to think that this kind of stricture will prevent the list of issues being abused on occasion but at least the proper starting point for the parties has been made clear.
The working party’s recommendations also introduced a new document, a disclosure schedule, that set out by reference to the list of issues the disclosure that each party wanted from the other.
The guide keeps the disclosure schedule and gives helpful guidance at paragraph E2.3, that the schedule should indicate what document a party recognises should be covered by standard disclosure and whether it intends to place any, and if so what, limits upon its search on the basis that it would be unreasonable.
It is explained that the court will normally invite the observations of other parties upon the proposals in a disclosure schedule with a view to determining the proper extent of disclosure and any proper limits upon the search for documents before the parties make disclosure.
The mandating of a proper dialogue between the parties before disclosure takes place is welcome.
It may help to reduce discovery being given on a basis which is too broad, whether with a view to driving the other side to increase cost or because it was thought, possibly wrongly, that standard disclosure required those documents to be disclosed.
It enables parties to ventilate up front problems with the disclosure sought by the other party and to argue for creative directions, such as the disclosure taking place but being paid for by the party who wants it.
So far as witness statements is concerned, paragraph H1.2 makes it clear that a witness statement should usually follow the chronological sequence of events but states that it would be helpful for particular passages in the witness statement to make clear, for example by a marginal notation, to which issue in the list of issues it relates.
This will not inevitably assist in reducing the length of witness statements but may assist in ensuring that relevant issues are covered adequately and irrelevant issues are limited as far as possible.
Similarly, paragraph H2.1 requires a party to identify why any proposed expert evidence is helpful by reference to the list of issues.
The guide has therefore struck an appropriate balance, in light of the feedback obtained from practitioners, and the process of feedback has not concluded, with the Guide right up front stating that “suggestions for its improvement are always welcome”.
Simon Davis is head of commercial litigation at Clifford Chance and past president of the London Solicitors Litigation Association