Should the courts work faster? Reaching trial sooner may be more of an advantage to the Claimant, if the Defendant is happier dragging a claim out to put off the evil day, but the courts are nonetheless trying to provide ways to get there more quickly and at less cost.
The Courts in London have been piloting a Shorter Trials Scheme (STS). “Shorter” here means coming to trial no later than 10 months after issue of the claim. Whilst ‘short’ may then mean something different in legal circles, a standard case does not typically come to trial sooner than around 18 months after issue and, in heavy cases, considerably longer.
The aim of the pilot scheme is to achieve shorter and earlier trials for business related litigation, at a reasonable and proportionate cost. The standard court rules have been amended to help foster a change in litigation culture, recognising that comprehensive document exchange and a full trial on all issues is often not necessary for justice to be achieved.
The pilot started in October 2015 and will run through to September 2018 before, it is anticipated, being adopted on a permanent basis and possibly extended more widely. (Currently it is for business claims issued in certain Divisions of the London courts only).
Which cases are suitable? Cases that depend on lower volumes of documentary evidence, only a handful of witnesses and minimal expert evidence will be suitable, but that is difficult to define. The bottom line is if you have issues capable of being tried in four days or fewer (whether that time is used in legal submissions, cross examining witnesses, or experts) the case is suitable.
Although reported cases in the scheme are few, those that have been publicised have been supportive. One of the first, National Bank of Abu Dhabi v BP Oil International Ltd (2016) was a compensation claim brought by a commercial bank for breach of warranty and representation. Judgment was given for damages of over US$68m. The claim was issued in March 2016. There was very limited disclosure and no witness evidence: the trial was for one day in November 2016, with judgment given within around eight months later. Value alone does not make a case unsuitable.
Another reported case, Vitol v Beta (2017), concerned breach of a contract to deliver biofuel. It was neither technical nor document heavy and, from issue of the claim to delivery of judgment, took ten months.
There has also been a very technical patent case reported. This case, L’Oreal v RN Ventures heard in December 2017, was more complex, claiming infringement of the patent and design of a facial skin care device. The hearing was over three days with three highly technical expert witnesses, but it was dealt with effectively and the judge appeared to consider that the appropriate level of evidence was made available. He said “Although L’Oréal relied upon experiments in support of its case of infringement of the Patent, which were the subject of significant cross-examination, the timetable was adhered to and the issues were fully debated. It was a positive advantage that Counsel were only required to put the principal issues in cross-examination.”
Our own experience of the STS is positive. It is a good option for relatively straightforward business claims, regardless of subject matter or value. The slimmed down procedure is a realistic way to reduce costs because if the full rigour of the litigation process is not needed, it can be dispensed with.
On launching the STS the Lord Chief Justice said:
“Small and medium sized businesses are the lifeblood of the economy. To prosper, they need disputes to be resolved in a speedy, fair and economic way. The introduction of this judge-led reform will help to ensure that court users can have their disputes resolved quickly, improving access to justice for businesses.”
We look forward to hearing the outcome of the pilot and the assessment of whether that has been achieved.