No costs budget required: 10 things commercial litigators need to know about the shorter trials pilot scheme

1 october calendarCamilla Macpherson from DLA Piper discusses the highlights of the shorter trial pilot scheme, which is now open for business.

1. The shorter trials pilot is a new option for commercial cases which do not require extensive disclosure, witness or expert evidence. It is intended to offer dispute resolution on a commercial timescale. The target audience is business parties looking for a swift resolution of their dispute.

2. It is available to claims issued after 1 October 2015 and will run for two years.

3. It is in operation in courts situated in the Rolls Building (i.e. the Commercial Court, the London Mercantile Court, the Technology and Construction Court, the Chancery Division, and including Financial List).

4. Key elements of the pilot include: a docketed judge to provide continuity and efficiency; an early CMC; a trial within 10 months of the issue of proceedings; short pleadings and witness statements; oral evidence to be limited to identified issues; and a maximum four day trial (including reading time). Judgment will be handed down within six weeks.

5. There is no requirement for a costs budget to be produced. Costs of the entire case will be assessed summarily by the trial judge, the parties having exchanged schedules of costs three weeks after trial.

6. Disclosure is limited to documents relied upon and documents requested by the other party (similar to the approach taken in many arbitrations). Requests for documents are to be exchanged before the CMC and then either agreed or ordered at the CMC to be disclosed. Standard disclosure therefore does not apply.

7. Parties are expected to assist the court in identifying the real issues in dispute as early as possible, and to co-operate and communicate with each other to ensure that cases in the pilot are actually dealt with quickly and cost effectively.

8. The pilot is not normally going to be suitable for: fraud/dishonesty cases; cases which are likely to require extensive disclosure and/or extensive witness or expert evidence; cases involving multiple issues and/or multiple parties; and public procurement cases.

9. The pilot is not mandatory. Claimants need to opt in to the scheme (the defendant can then object if it does not consider the case to be suitable). Defendants can apply at an early stage (before the first CMC) for an order that a claim against them be transferred into the pilot, and a court may of its own initiative suggest that a case be transferred.

10. The shorter trial pilot scheme is running alongside the flexible trial pilot scheme. The flexible trial pilot allows parties to adapt court procedure to suit their particular case, with the emphasis on limiting disclosure and restricting oral evidence at trial to the minimum necessary. It is intended to offer a consensual process, modeled on the flexibility offered by the arbitral process.

Further Information and guidance

PD51N sets out the Shorter and Flexible Trials Pilot Schemes in full detail and LexisPSL Dispute Resolution subscribers can find further guidance in our Practice Note  Rolls Building—shorter trials pilot scheme for claims issued on or after 1 October 2015. If you are not a subscriber you can click here for a free trial to access.

Camilla Macpherson is head of the Litigation & Regulatory know-how team at DLA Piper. She trained and qualified with Allen & Overy, where she remained in practice for over ten years and worked on a wide range of commercial matters including a number of banking and insurance disputes and complex jurisdiction challenges. Her experience spans both litigation and arbitration.

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