Can Shorter or Flexible Trials Schemes save your business time and money?

16 Mar 2020

Businesses generally look to resolve disputes in the quickest and most cost-effective manner possible; ideally without the need for litigation. However, sometimes the parties’ positions are so intractable that litigation is necessary to break the impasse.

Where businesses might previously have been deterred by the cost and time it takes to pursue litigation (and some claims can take years to come to trial), there are now alternative routes available that could reduce the time and cost of litigation such as the Shorter Trials Scheme and Flexible Trials Scheme (which are both now permanently  available in the Business and Property Courts).

Flexible Trials Scheme

The Flexible Trials Scheme (FTS) aims to streamline the disclosure process, the provision of evidence and the trial itself. These procedures can be adapted by agreement between the parties once litigation is underway. This is primarily achieved by the parties asking the Court to determine identified issues by reference to written evidence and submissions, with any oral evidence being limited. The specifics of the Scheme are as follows:-
  • Standard disclosure requires parties to carry out a “reasonable search” for any documents which (i) adversely affect his own case; (ii) adversely affect another party’s case; or (iii) support another party’s case. Under the FTS, parties must disclose those same categories of documents but without the need to carry out a search.
  • Witness and expert evidence at trial is given by written statements/reports, and any oral evidence is limited to the specific issues identified by the parties.
  • The parties’ advocates must make their trial submissions in writing, with any oral submissions or cross examination being time-limited. In addition, there is no requirement for each issue in dispute to be put to the other parties’ witnesses during cross-examination; the FTS allows an issue to be determined on the basis of written evidence, which can save a lot of time.
Shorter Trials Scheme

The Shorter Trials Scheme (STS) aims to reduce both the overall time it takes for a case to come to trial, and the length of the trial itself; under the Scheme trials will be limited to no more than four days. To that end, and providing the case is suitable for the Scheme, parties must usually agree to use the STS at the pre-action stage (before a claim is issued), and a designated judge will be allocated to the claim from the outset.

The key details of the Scheme are set out briefly below:-
  • The Claimant must send a pre-action Letter of Claim giving “succinct but sufficient” details of the claim and notifying the Defendant of the intention to use the STS.
  • It is only necessary to wait 14 days before “promptly” serving the Claim Form and Particulars of Claim, and the Particulars must be served with the Claim Form (Claimants usually otherwise have the option to serve the Particulars later). The Particulars, Defence and Counterclaim must be limited to 20 pages and must be accompanied by a bundle of core documents.
  • The Case Management Conference (CMC) will take place approximately 12 weeks later, when the Court will consider and approve the list of issues prepared by the parties, consider Alternative Dispute Resolution and give directions for trial.
  • The costs budgeting rules do not apply.
  • Within four weeks of the CMC, parties must provide disclosure by exchanging lists of documents and serve copies of those documents. The lists of documents must only include documents which support the party’s case and those which have been requested by the other party.
  • Witness statements shall not exceed 25 pages.
  • Expert evidence at trial will be given by written report, and any oral evidence will be limited to the specific issues identified by the parties.
  • The trial shall take place not more than eight months after the CMC and shall be limited to four days. The Court will endeavour to hand down judgment within six weeks of trial.
These Schemes will not be suitable for every case, - particularly complex cases, - but if you can make use of one of them, you should be able to have your case heard more quickly and at a lower cost. This will allow you to pursue or defend a claim more efficiently, letting you get on with what you’d prefer to be doing – running your business.

If you’re facing a claim or thinking of bringing one and would like to know if either of the Schemes might be suitable, please don’t hesitate to get in touch.

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