Commercial & Chancery: Shorter and sweeter

The Commercial Court working party’s recommendations are not set in stone
and, as such, will be a shot in the arm for the country’s litigation framework, says Simon Davis

If there is one thing the litigation ­system in England and Wales is not short of, it is recommendations for reform. Whether they be in ‘big bang’ form such as those from Lord Woolf, or more subtle, in the form of practice directions and protocols, such recommendations are often laudably motivated, but do not inevitably result in a reduction of work and costs for the participants.

We should also bear in mind that, while expert judges and practitioners are frequently able to find faults with our system, it is ­regularly praised by clients with direct comparable experiences in other jurisdictions.

Against this background, any further reforms of our system should only take place where required for our courts to remain attractive to clients and with the aim of ­taking work, and therefore costs, out of our system and not increasing them. There is not much point in trumpeting the successes
of settlements and alternative dispute ­resolution if those were driven by concerns about the system.

With this in mind, the Commercial Court working party was only formed after a ­symposium had taken place and a detailed consultation exercise had been concluded. Both involved feedback from clients and both were designed to help those involved understand whether further recommendations were required, particularly in the context of large and complex trials, having regard to the concerns surrounding the demise of the BCCI and Equitable Life cases.

A bit of a change

The feedback received was consistent. Everyone accepted that the adversarial method should be retained in our system, but the majority considered that there ­needed to be major modifications in the way the adversarial method was used during the pre-trial period and trial of cases. No one wanted to throw out the key elements of ­litigation in the Commercial Court: ­pleading a case in writing, disclosure of internal documents, the exchange of witness statements and the provision of reports from experts. Many advocated a serious review of these basic elements.

In the wake of this feedback the working party was formed. It was chaired by Lord Justice Aikens and consisted not just of Commercial Court judges, but also ­barristers, solicitors from firms practising regularly in the Commercial Court and, importantly, in-house lawyers from two major clients that had been involved in ­substantial cases recently.

The recommendations were intended to make sure that litigation, albeit adversarial in nature, was focused on those issues that really divided the parties. This was all with a view to reducing work being undertaken unnecessarily, such as clients having to produce large numbers of documents that may not actually help anyone decide the case.

The working party recommended that pleadings be no more than 25 pages in length, save in exceptional cases, and that a list of issues should be drawn up and settled by the judge, with disclosure of documents, witness statements and experts’ reports in the future being tailored to those issues. The trial itself would be subject to strong trial management, with a view to reducing the length of oral and written submissions, as well as the amount of time permitted for cross-examination.

The recommendations have now been piloted. True to form, the Commercial Court working party is taking in a wide range of feedback. The court hosted another ­symposium in the New Year, this time attended by members from the Commercial Litigators’ Forum, the London Solicitors Litigation Association and the Commercial Bar Association.

While the overall reaction to the recommendations has been positive, concerns were expressed concerning the time and expense sometimes being incurred for a list of issues to be concluded. The Commercial Court has therefore issued further guidance, making it clear that the list of key issues is 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.

Whatever form the recommendations next take, we can at least be sure that they were the result of wide consultation and were drawn up with the strong participation of court users.

Simon Davis is head of commercial ­litigation at Clifford Chance and a
former president of the London Solicitors Litigation Association