Revision decisions

The Commercial Court’s hearings and evidence submission processes are under a working party review. David Lewis reports

The Admiralty and Commercial Court Guide, setting out the procedure of those courts and so of importance to all practitioners using them, is under review. A working party has recently produced its draft recommendations which will, following a period of consultation, be put forward to the Commercial Court Users Group, a body made up of all judges who have ever sat in the Commercial Court, numerous senior lawyers and other interested representatives from the worlds of trade and arbitration.

The working party has recommended a number of procedural changes that have the potential to reform the way the court functions in several ways.

Service disputes

Many users of the Commercial Court will be familiar with the complex jurisdictional applications that can be measured in days rather than hours (contrary to the famous exhortation of Lord Templeman).

In order for such applications to be subject to closer judicial case management, the working party proposes that directions hearings should take place in advance of the main hearings of certain applications to set aside service. This is on the basis that such applications can involve substantial documentary evidence as well as evidence of foreign law, for which the ordinary ‘heavy application’ procedure may be inappropriate.

Arbitration applications

Similar to the service disputes proposal, the working party recommends that, in arbitration applications where the existence of an arbitration agreement may be in dispute (so that disclosure, factual evidence and possibly even expert evidence may be required), the parties should apply for a case management conference (CMC) for directions to be given. In practice, the Commercial Court has already been fixing ‘arbitration CMCs’ on its own initiative, but the proposal would pass the onus on to the parties to fix such hearings.

Causation and quantum defences

The days may be gone when causation and quantum defences were the last refuge of the defendants whose lawyers have watched the defence on liability gradually crumble as trial approaches. The working party notes that the defendant will sometimes only plead a positive cause on causation and quantum when experts’ reports are exchanged.

In order to avoid this, it is proposed that the case management information sheet requires the defendants to indicate whether they intend to advance a positive case on causation and/or quantum and, if so, when they will be able to provide the details of that case.

Case management conferences

Electronic disclosure

It is proposed that the guide gives effect to the recommendations of Mr Justice Cresswell’s working party on electronic disclosure. Those recommendations set out how the parties should, prior to a CMC, discuss any issues of retrieval and disclosure relating to electronic documents. Electronic documents include all emails and other electronic communications, encompassing documents stored on servers and back-up systems, even when apparently deleted.

In certain cases, the parties may have to provide information about the computer systems, electronic devices and media on which any relevant documents may be held. The recommendations then set out the factors that may help determine the reasonableness of any ‘electronic search’, which may include the use of keyword searches.

Factual evidence given by experts

Commercial cases can often involve individuals who give both evidence of primary facts and expert evidence, such as surveyors, loss adjusters and forensic accountants. The working party recommends that the dual function of such individuals be reflected in two separate documents. It suggests that evidence as to observed facts should be exchanged by way of witness statement at the appropriate stage, with the expression of expert opinion being exchanged at the (normally later) stage of exchange of expert evidence, thereby allowing opposing experts to take account of any relevant factual material.

Late evidence

Given the potentially disruptive effect of late evidence, the working party proposes that applications to adduce such evidence from existing witnesses should be made at the pre-trial review or as early as possible before the trial starts, failing which compelling evidence will be required to explain the delay. Where evidence from additional witnesses, from whom statements were not exchanged at the normal stage, is being adduced, compelling evidence may always be required to explain the delay. It is also proposed that experts’ supplementary reports must be exchanged before the progress monitoring date, failing which they will not be admitted without very strong grounds.

Permission to appeal

Advocates seeking permission to appeal from the initial judge may in the future have to do more than just turn up and make submissions orally. The working party recommends that, if such an application is to be made when judgment is being pronounced, it should be supported by written draft grounds of appeal.

At present these are only recommendations. They may or may not be adopted by the Commercial Court Users Group, and they may be adopted with further variations. The precise details of the draft recommendations has not been set out here.

The working party was headed by Mr Justice Colman, and those interested in seeing the draft recommendations should contact his clerk.

David Lewis is a barrister at 20 Essex Street.