Disputes 2016: New procedural options

Shorter, Earlier and Flexible Trials

Towards the end of 2015 pilot schemes began for two distinct procedures designed to increase efficiency in the Rolls Building courts (including the Commercial court, Chancery, Patents Court, Financial list, Technology and Construction Court and Mercantile Court). Both the pilot schemes are voluntary, but 2016 should see cases start to progress under them, providing an indication of whether they are likely to become a fixed and possibly compulsory part of the litigation landscape.

In brief, the Shorter Trials procedure provides for a condensed timetable, with no pre-action protocol, limited oral evidence and limited disclosure. Trials are limited to four days at most, including reading time for the judge. Streamlined directions aim for trial within ten months of the issue of proceedings and judgment within six weeks of trial.

The Flexible Trials procedure allows the parties to elect to reduce the scope of certain stages of the procedure, including witness evidence and disclosure, providing they agree.

For more on the Shorter and Flexible Trials initiatives, see our more detailed article.

The Financial List

Another innovation that will start to see use in 2016 is the Financial List, with specialist financial judges to hear high value financial claims (financial markets claims for more than £50m), cases that raise important issues concerning the domestic and international financial markets, or cases which require particular expertise in the financial markets. Cases which would benefit from being heard by judges with particular expertise in the financial markets or which raise issues of general importance to the financial markets can be dealt with in the Financial List by judges with suitable expertise and experience.

A pilot scheme commenced in October 2015, enabling test cases on issues of importance to the financial markets to be brought without the need for a present cause of action. Market participants with opposing interests in relation to the relevant issue, but not necessarily a present cause of action, can seek a decision from a specialist Financial List judge through the Test Case Scheme. This will allow issues to be resolved without adverse costs orders, bringing with it a real opportunity to strengthen certainty in the market over key issues without any party running the risk of a huge costs liability if its view is not favoured by the court. It is likely that the first such test case will be commenced in 2016.

For more details on the Financial List, see our article.

Briggs Review of Civil Courts Structure

Further innovations in court procedure are also likely. A review of the structure of the civil courts is currently being carried out by Lord Justice Briggs, the results of which should be seen in 2016. An interim report was published on 12 January 2016, setting out proposals including:

• routine case management to be transferred from judges to Case Officers to free up the judiciary for more critical decision taking
• moving more work from the High Court to the County Court and from London to the regions
• stricter criteria for the granting of a right to appeal and the possible removal of the automatic right to renew an application for permission orally if turned down on the papers
• an online court designed for use by litigants without recourse to lawyers, for claims up to £25,000, and
• a unified structure across the courts for the enforcement of judgments, adopting the most effective practice throughout and reducing the reliance on official forms and papers as part of a general move towards digitalisation.

Written responses to the interim report are invited by the end of February 2016, with a wider consultation expected shortly afterwards. The review is due to be completed by the end of July 2016 and may lay the ground for more far-reaching changes in an effort to increase efficiency and maintain the traditional pre-eminence of the courts of England and Wales as places to resolve commercial disputes.