Shorter Trial Scheme and Flexible Trials Scheme
by Tom Moisley and Jamie Cawthorn
The Shorter Trials Scheme (the “STS”) and Flexible Trials Scheme (the “FTS”) are trialling shorter and earlier trials for business related litigation. The aim is to resolve disputes in less time and at less cost than would be the case in an ordinary High Court trial. This article will briefly outline the key features of each of the schemes.
The STS is not mandatory. The claimant can choose to start a case within the scheme or, if proceedings have already been commenced elsewhere, can make an application to transfer into the STS without the Defendant’s consent. The defendant, including a Part 20 defendant, will have the right to apply to transfer a case out of the STS and, if successful, the case will proceed in the court in which it was first issued. Both applications to transfer in and applications to transfer out of the scheme must be heard by a judge and should be made promptly, normally not later than the first Case Management Conference (“CMC”). The court itself also has a discretionary power to “suggest” that a case be transferred into the STS.
All STS claims will be allocated to a designated judge at the time of the first CMC, or earlier if necessary, with the aim of reaching trial within approximately 10 months of the issue of proceedings. The length of trials will be limited to 4 days, including reading time, with judgment intended to be handed down within 6 weeks of the end of the trial. Application procedures under the STS will be simpler than under the standard procedure, with the option of making them either in writing or by telephone. A docketing system is used to ensure that the same judge who deals with case management will also hear the trial.
Disclosure will be limited to documents relied upon and documents requested by the other party. The STS does require a party to set out the steps taken to “locate” the documents required to be disclosed. However, unlike standard disclosure, there is no obligation on a party to voluntarily disclose adverse documents. It should be noted that, where requested by the opponent or the court, adverse documents will need to be disclosed.
Strict adherence to the timeline leading to trial under the STS will be expected, with extensions only permitted in limited circumstances. In terms of costs, a new system of speedy assessment will replace the usual costs management provisions resulting in costs being assessed summarily with no requirement for costs budgets.
Certain cases will not be suitable for the scheme, including cases involving an allegation of fraud or dishonesty, cases likely to require extensive disclosure and/or reliance on extensive witness evidence, cases involving multiples parties and multiple issues, and cases in the Intellectual Property Enterprise Court. Where a case is suitable for the scheme, other factors, such as the amount claimed, will be relevant to the question of whether the STS is suitable for the case, but will not be determinative.
The aim of the FTS is to achieve a more streamlined trial procedure compared with the standard High Court process, achieved by adopting flexible case management procedures including disclosure, witness and expert evidence, and submissions at trial. Under the FTS, the starting point is a “default flexible trial procedure”, which is a standard procedure that can be adopted in full, or amended by agreement to suit the case. The court will retain a discretionary power to permit or deny the parties proposed variations, which should be proposed before the first CMC.
Under both the STS and the FTS expert evidence at trial will be given, wherever possible, by written reports. With regard to witness evidence generally, witness statements are limited to 25 pages and the schemes enable the parties to agree to invite the court to determine identified issues on the basis of written evidence and submissions. In such a case, while the court will seek to comply with the parties’ request, it may call for oral evidence to be given or oral submissions to be made on any of the identified issues if it considers it necessary to do so.
Similar to the STS, the FTS provides for limited disclosure. However, unlike the STS, the FTS requires a party to voluntarily disclose adverse documents of which they are aware without the need for a search. Another important difference between the schemes is that under the FTS there is no provision for an appeal court to take into account that the case was heard under the scheme, whilst it can do this for a case decided under the STS.
The aim of both proposals is the achievement of speedy but fair justice at a reasonable and proportionate cost and to offer flexibility to attract those disputes which might otherwise be referred to arbitration. Despite this, we understand that only a small number of cases have been issued or transferred to the STS and fewer still have used the FTS. However, judicial support has not been dampened, with Mr Justice Blair urging use of the scheme at the 2016 Commercial Litigation Association annual conference.
The STS and the FTS will run until 30 September 2018, but will continue to apply after 30 September 2018 to any claims issued whilst the schemes were still in force. At this stage, it is not yet clear whether the schemes will be retained after this date, and if they are, whether they will be expanded to other divisions of the High Court.
From 1 June 2017 the three specialist courts within the Queen’s Bench Division of the High Court, that is:-
• The Commercial Court;
• The Technology & Construction Court; and
• The Admiralty Court will be continued and will be known as the Business and Property Courts of England and Wales.
If you require further information or advice regarding the contents of this article please contact Tom Moisley whose details appear below.