2020-02-17
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The Shorter Trials Scheme beyond piloting; a budget airline approach to litigation

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Posted by Susan Hopcraft on 07 November 2019

Susan Hopcraft - Professional Negligence Lawyer
Susan Hopcraft Partner

The Shorter Trials Scheme (STS) aims to limit the time spent when businesses are locked in litigation. The aim was to allow ‘lighter’ cases to move faster through the courts, hopefully reflecting a more commercial approach.  Whether the STS is appropriate depends on the case though.

The essential feature is that your case must be capable of less than four days in trial.  If it is, then the STS is designed to bring it to trial within 12 months of issuing a Claim Form.  Larger cases typically take 18 months or more to come to trial.  High value cases can be equally suitable as lower value cases, although only cases worth more than £100,000 can typically be brought in the High Court where the Shorter Trials Scheme sits.

Claims involving dishonesty, fraud, public procurement, or intellectual property are not appropriate. Generally, the Shorter Trials Scheme is best suited to cases which do not require large amounts of documents, lengthy witness evidence, or expert evidence. For example, witness statements are limited to 25 pages so only cases with relatively few factual issues and relatively few witnesses will fit.

A desire to use the Shorter Trials Scheme must be considered and communicated to the other side early, in the Letter of Claim. Cases can be transferred to the STS, but an application to do this should not be made later than the first case management hearing.  Ideally both parties would agree to using the Shorter Trials Scheme but, if there is disagreement over suitability, the court will decide. 

High Court litigation

The scheme was originally piloted on a trial basis but in July 2017 Mr Justice Birss announced that the Shorter Trials Scheme would be permanently available for High Court litigation. He said that the STS “is designed to be a relatively prescriptive system”. Although the tight time frame may only suit some claims, just over two years on from Mr Justice Birss’s announcement, we are well into the permanent implementation of the Shorter Trials Scheme. So, how does it impact bringing or defending against a claim?

For claimants the clear advantage is that you should resolve the claim more quickly in the Shorter Trials Scheme than if you use the standard court track.  A shorter time frame might, if it encourages parties to limit their evidence, reduce costs. However, if you are defending a claim through the STS it may well leave you feeling pressured to respond and limit disclosure accordingly. The holistic objective of the Shorter Trials Scheme is that it limits both parties: inherently this is both positive and negative. You might reduce legal costs, but if that limits your ability to defend the claim properly then it may not be advantageous.

The consensus of practitioners who have used the STS seems to be that if you agree to the Shorter Trials Scheme but then draw out proceedings, this would be criticised. If you commit to using the Shorter Trials Scheme at the outset, you need to stay true to the original intent of the parties.

Flexible Trial Scheme

There is also a Flexible Trial Scheme (FTS) which is similar to the STS but is more open-ended. The Flexible Trial Scheme was subject to a pilot which concluded at a similar time. Despite also being adopted post-pilot, the FTS seems to be less popular. In the FTS, claimants and defendants can approach the court together and set their own deadlines. This may mean the timetable is more difficult to agree and therefore this freedom brings a degree of uncertainty and risk. This may have contributed to the Flexible Trial Scheme  proving less popular than the Shorter Trials Scheme.

Whilst there are challenges associated with a shorter time frame to prepare for court, commercial dispute resolution on a fixed, finite timescale is attractive particularly to claimants; and should be valuable to defendants. The strict deadlines of the STS might raise a challenge, but they also offer faster resolution.

About the author

Susan is a disputes and professional negligence lawyer, mainly in the financial services sector.

Susan Hopcraft

Susan is a disputes and professional negligence lawyer, mainly in the financial services sector.

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