Running out of time (Fixed ended trials pilot scheme)

Running out of time (Fixed ended trials pilot scheme)

The past few years have a seen a large number of pilot schemes running in the courts due to the Jackson Reforms. With the small claims mediation scheme coming to an end in March we could perhaps be forgiven for hoping that the courts would give us some breathing space before any more pilot schemes come into play. Well there is some breathing space but only one month!

A new pilot scheme will be up and running in the Chancery Division of the High Court from 1 May this year entitled Fixed ended trials.

The question for practitioners involved with cases in this Division is will it affect them, if so what does the pilot entail and what impact will it have?

Well, if the trial date is on or after 1 May 2014, it may well affect them and a failure to understand the implications of the pilot scheme could have serious repercussions if the time estimate provided for trial proves to be an underestimate, even if by a small margin.

Reasons for the pilot scheme

The Chancery Modernisation review found that almost 50% of cases exceeded their time estimate for trial and that on average the underestimate was by almost 50%. The Chancery Division are seeking to address this in a two pronged approach (1) encouraging parties to produce better time estimates and backing this up with (2) a new pilot scheme bringing in fixed ended trials:

Time estimates

Parties need to pay much more attention to the time estimates being provided to the courts in relation to the amount of time that will be required for trial. Issues highlighted are:

  • consider how long will each element of the case will take
  • how much time will the judge require for pre-reading before the trial starts
  • is there a need to have an interval between the final giving of evidence and the making of final submissions? If so that interval needs to be added into the time estimate
  • parties should agree a trial timetable as early as possible and review as and when circum-stances change

Fixed-length trials

The pilot scheme for these will begin on 1 May 2014. The pilot scheme, recommended by Lord Justice Briggs, will put into place his proposal that each trial should be required to be completed with the period allocated to it, unless there are unexpected circumstances.

Practitioners involved with proceedings in the Chancery Division therefore need to consider the following:

  • the time allotted for the trial includes the judge's pre-reading. If the judge requires additional time this will simply be taken out of the time allotted for the rest of the trial. It is therefore im-portant to ensure that not only the time for trial but also the pre-reading time for the judge are carefully considered before estimates are provided to the court
  • cases may be chosen for the pilot scheme as late as the day before the trial begins. It is there-fore imperative to ensure that all time estimates provided to the court for the trial are as accu-rate as possible. Note: sometimes the court may be able to inform the parties well in advance of the trial that it will be conducted under the pilot scheme ie on a fixed-length basis but practi-tioners should be prepared for much shorter notice being provided
  • trial preparation should be carried out on the basis that the case may be subject to the pilot scheme and will not be allowed to overrun
  • if your matter is listed for trial on or after 1 May 2014, you need to urgently review the time es-timates and inform the court immediately if the time estimate is now considered to be too short

Details of how the pilot scheme will be applied in practice have not been made available. Many issues arise such as:

  • will the use of fixed length trials require the court to impose much more rigid time constraints throughout the trial to ensure that both parties are provided with the opportunity to present their evidence and make their submissions.
  • will we see courts imposing time limits for the cross examination of each witness/expert?
  • how will the court deal with the issue of written closing submissions? Will the court's reading time for these be included within the 'fixed length trial' such that the court could be left in a position that if time runs out the closing submissions will effectively have to be ignored by the judge?

One thing we can be sure of, and that is that the implementation of this pilot scheme will result in an increase in the time estimates being provided for trial as practitioners urge on the side of caution.

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About the author:

Janna is a dispute resolution lawyer. She deals primarily with cross border issues and is active in the work being undertaken in relation to the implications of Brexit for Dispute Resolution lawyers. Janna also heads up a LexisNexis costs team bringing together expertise from across the company to deal with the costs issues facing the profession.