by John MacKenzie
The Shorter and Flexible Trial Procedures were introduced with the express intention of allowing “dispute resolution on a commercial timescale”. The procedures were introduced after pilot schemes. At the time it was said that:
“The aim of both pilot schemes is to achieve shorter and earlier trials for business related litigation, at a reasonable and proportionate cost. The procedures should also help to foster a change in litigation culture, which involves recognition that comprehensive disclosure and a full, oral trial on all issues is often not necessary for justice to be achieved. That recognition will in turn lead to significant savings in the time and costs of litigation.”
Shorter Trial Procedures
The main features of the Shorter Trial Procedures are:
u Applications are on paper or by telephone. So less time in court.
u Disclosure of documents: there should be an issue-based approach and no requirement to volunteer adverse documents. This is a significant change, with Scottish lawyers recognising in particular the “issues based approach”.
u Provisions to limit witness evidence. This might be through controlling inadmissible evidence, but might also involving excluding potentially unnecessary duplication.
u Trial to be no more than 4 days long. This perhaps speaks for itself. Four days is a lot of court time, but if issues are properly focused and witness statements limited, most disputes should be capable of being resolved in that time.
u Judgment to be issued within six weeks of trial. The delay in producing a judgment has long been a source of concern to clients.
u A designated judge should try the case where possible. This is perhaps one of the most important features. Where important case management decisions are taken by a judge, those flow naturally into the conduct of the trial. If a different judge has to hear the trial then problems can arise.
Dealing with complex cases
In the decision of Excel-Eucan Ltd v Source Vagabond System Ltd. There the judge was dealing with an objection that due to the “complexity of the case, the need for disclosure and the likely length of trial” the case was not suitable for the Shorter Trial Procedure. The court was particularly concerned about disclosure, and commented that:
“It is the case that courts are encouraged to look with care at the extent of disclosure, the underlying philosophy being that in particular commercial disputes have had a tendency to become bogged down and excessively expensive because of disclosure.
That of course is not to say that the shorter trial scheme prevents appropriate disclosure taking place simply that the usual rules of Part 31, and in particular standard disclosure, do not apply to the proceedings. Rather, the parties must tailor requests for disclosure which, to my mind, comes some way similar to that which the disclosure pilot is aimed to achieve. The provisions of Practice Direction 51a state that the shorter trial scheme will not normally be suitable for, ‘b) cases which are likely to require extensive disclosure and/or reliance upon extensive witness or expert evidence’. Paragraph 2.4 provides that, ‘The length of trials in the scheme will be no more than four days including reading time’.”
The parties had developed detailed and lengthy statements of case, while the court rules urge simplicity and brevity. Because there were complicated statements of case, it was argued that the case was not suitable for the Shorter Trial Procedure. The judge rejected that argument:
“It seems to me that that kind of complexity should not blind the court to the reality of what the shorter trial scheme is about which is whether the case can properly be contained within the trial estimate of no more than four days and whether it truly requires extensive disclosure and/or reliance upon extensive witness or expert evidence.”
After reviewing the witnesses proposed, and the disclosure requested the judge was content to allow the case to remain in the Shorter Trail Procedure. He was however at pains to emphasise that the decision turned on the facts and circumstances of this case. So unfortunately the answer to the question “how complicated is too complicated” is: it depends!
About John MacKenzie
An experienced solicitor advocate, John deals with a range of commercial litigation and has particular expertise in intellectual property and IT matters. He has rights of audience before the Scottish and English courts, appearing regularly before the Court of Session and the Scottish Appeal Court, and is one of the few solicitor advocates to have appeared before the General Court of the Court of Justice of the European Union. John advises on IP infringement issues and in particular online brand protection for clients from a variety of sectors, UK-wide, including energy and utilities, banking, IT and manufacturing. He has considerable experience in leading and managing high value claims backed by third party litigation funders. He sits on the Lord President's Consultative Committee on Commercial Actions. He is also vice-Chair of the ADR Committee of the International Trademark Association.