Shorter or More Flexible Case Management? You Decide

Two new schemes namely: Shorter Trial Scheme ("STS") and Flexible Trial Scheme ("FTS") were introduced in 2015, aimed at achieving shorter and earlier trials for business related litigation, at a reasonable and proportionate cost.

The STS and FTS schemes (together the "Schemes") began operating from 1 October 2015 with the trial due to end on 30 September 2017. They are available for 'business cases' and such a cases would include almost all intellectual property disputes.

The Schemes currently operate in the Commercial Court, Technology and Construction Court, Chancery Division and Mercantile Court which are all dealt with in the Rolls Building, London.

The Schemes recognise the need to change the culture of litigation in the sense that in many cases, it is unnecessary to have trials running on for longer than they should. This is not appropriate when parties want to achieve justice as soon as they reasonably can.

Shorter Trial Scheme

The STS offers dispute resolution on a commercial timescale. Cases will be managed by docketed judges and it is expected that the same judge will hear the Case Management Conference and any subsequent trial and/or applications made by the parties.

Furthermore, the STS will encourage reaching trail within approximately eight months after the proceedings have been issued. It is hoped that judgment will be made on the case within six weeks thereafter. The maximum duration of the trial would be four days, including reading time. This Scheme will limit disclosure, cross-examination and will be limited to the principal elements of the case, thus saving time.

The STS is available to cases of any size and is similar to the procedure in the Intellectual Property Enterprise Court ("IPEC").

Flexible Trials Scheme

The FTS is an alternative to the STS. It aims to give more control to the parties who are allowed to agree directions on the condition that the court also approves. This is a move towards a flexible case management procedure where the parties so agree, resulting in a simplified, expedited procedure.

The FTS encourages greater control between the parties and the STS provides the court with more power in handling the case.

Use of the Schemes

It is understood that only two cases have been transferred onto the STS Scheme and none have been transferred to the FTS. The first decided STS case is Family Mosaic Home Ownership Ltd v Peer Real Estate Ltd [2016] EWHC 257 (Ch) which was heard in the Chancery Division.

In the above case, Birss J gives an insight into the STS and its aims. It highlights the situation where all parties agree for their case to be transferred to the STS, however it does give guidance where a party could object to the use of the STS.

He states in paragraph 8 that: "The initiative as a whole also seeks to foster a change in litigation culture: a recognition that comprehensive disclosure and a full, oral trial is often unnecessary for justice to be achieved. That in turn should improve access to justice by producing significant savings in the time and cost of litigation."

Birss J also confirmed, although it is not expressly set out in the relevant rules, that the court does have power to transfer cases to the Schemes.

Either party is free to specify that they wish to use either Scheme when they issue a claim. In the judgment above, Birss J confirmed that a party is welcome to make an application for the case to be transferred onto a Scheme even after proceedings have started.

The Schemes are an example of civil litigation changing for the benefit of litigating parties and as an attempt to saving time and cost. Furthermore it is an example of the system modernising commercially and increasing its competitiveness when compared to litigation models in other jurisdictions.