After BCCI: do Commercial Court reforms go far enough?

The Commercial Court is about to be given a makeover. Out with the 80-day opening statements, the length of supercases will be curtailed, with each case being assigned two judges. The proposed reforms, however, still stand accused of failing to go far enough.

The BCCI working party came together following the spectacular collapse of the BCCI trial. Deloitte’s legal fees alone were £38m. The working party’s aim was to introduce reforms that would cut the cost of bringing cases in the Commercial Court by reducing the length of the trials.

Rather than bringing about sweeping reforms, with the working party largely approving of the Civil Procedure Rules in their current form, it instead offered judges clarification on where they can intervene to speed up cases. Effectively, the proposals seek to limit the amount of pre-action work carried out by the parties and give judges the power to take control of cases that appear to be getting out of hand.

White & Case dispute resolution partner Jason Yardly says the clarification was long overdue. “There are often cases which get out of control and it’s difficult for judges to know where they stand and if they can intervene,” he adds.

But Yardly thinks the working party may have missed a trick. It has failed to address issues with pre-action protocols, which is where costs are built up while parties appeal application after application. “It may be better for the judge just to say, ‘We’re wasting time with endless applications, let’s press on to the trial’,” Yardly suggests.

The proposals also lay the basis for the argument for one trial, one judge, argues another litigation partner. “Most cases in the Commercial Court would merit one judge being allocated for the entire trial,” insists the partner.

London Solicitors Litigation Association head and Clifford Chance partner Simon Davis, who was a member of the working party, rejects the claim. “It’s impractical,” he states flatly. “One judge per case may not be possible purely for pragmatic reasons – you have to deal with realities.”

Mr Justice Aikens, who chaired the working party, says the idea was given some serious consideration, but that there was no practical way of it working.

The Commercial Bar Association led the line of cautious welcomes for the reforms, with Allen & Overy, Herbert Smith, Lovells and Mayer Brown all lining up to endorse the proposals.

Lovells head of international litigation Patrick Sherrington labels it a “helpful and intelligent attempt to address the issues which users felt needed looking at”. He goes so far as to say that, if the reforms are proven to reduce costs, it could set a precedent for other courts to follow. “Expectations have been raised,” he adds.

Davis says: “The key to success is full engagement by all parties.”

That means judges, barristers and lawyers working together to reduce costs. All very well in theory, but can it be applied practically?”The Commercial Court will be keeping a close eye on this,” states Davis.

Aikens J says it will look again at the proposals if the pilot shows there to be difficulties with the recommendations, “provided it’s not more judges, or finding money for something else, because it’s not going to come from the department”.

In response to the claim that the six-month pilot period, due to start on 1 February, is not long enough, Davis says: “You’ll see people putting this into practice and there’s no reason it shouldn’t start working straight away.”

Despite the initial criticisms, Yardly agrees that the report also has “some good points”, adding: “The restrictions on opening statements will be useful in helping to cut costs and a more hands-on approach from the judge is one thing we do want.”

The naysayers may not be entirely satisfied, but there is scope for further reform if the pilot proves the proposals to be unworkable. That said, Davis will not be a happy man if the parties fail to grasp the concept of reducing trial lengths to cut costs.

The proposals
– No trial, however complex, should be listed for more than three months.

– Barristers’ opening and closing speeches should last no longer than two days.

– Time limits should be set for questioning witnesses.

– Statements of cases should be limited to 25 pages.