TCC procedure: Shorter and Flexible Trials Pilot

Two new pilot schemes providing shorter and more flexible litigation procedures have been introduced for claims issued in the High Court Rolls Building in London including the Technology and Construction Court, running from 1 October 2015 until 30 September 2017. The Schemes aim to reduce the time and costs incurred by parties to litigation and provide a mid-point between the “rough justice” of adjudication and full blown TCC litigation.

When do the Pilot Schemes apply?

Since 1 October 2015, the new Shorter and Flexible Trials Pilot Schemes are available under the new Civil Procedure Practice Direction 51N. They apply to all claims issued in the Rolls Building, London (i.e. the Commercial Court, Technology and Construction Court, London Mercantile Court and the Chancery Division) and are therefore available to any matter which falls within the jurisdiction of these Courts (subject to the specific limitations on the Shorter Trials Scheme noted below).

The Shorter Trials Scheme (“STS”)

The STS offers judgment within a year of the issue of proceedings through a revised, streamlined procedure. Aimed at straightforward cases, it is not suitable for those involving allegations of fraud, extensive disclosure, extensive witness/expert evidence, or complex cases with multiple issues or parties.

In summary:

• Parties can issue cases directly onto the STS, or transfer existing cases across (provided that they are issued on or after 1 October 2015).
• A simplified pre-action procedure substitutes for any applicable pre-action protocols.
• Whether the case is suitable for the STS is at the Court’s discretion.
• The length of statements of case, witness statements and expert reports are restricted (for example, a maximum of 20 pages for the Particulars of Claim).
• All proceedings will be heard by the designated judge as far as possible to reduce reading in time.
• Applications will generally be dealt with on paper.
• Disclosure is limited to documents relied upon or specifically requested.
• Trial length is restricted to 4 days (including reading time) and cross examination is restricted.
• Costs budgeting does not apply unless otherwise agreed.

The Flexible Trials Scheme (“FTS”)

The FTS enables the parties to agree a flexible, simplified and expedited case management procedure, with the aim of reducing costs and obtaining an earlier trial date.

In summary:

• Claims are issued as normal and parties agree the use of the FTS prior to the first Case Management Conference.
• Once the use of the FTS is agreed, certain streamlined directions apply (subject to any modifications agreed by the parties) unless the court considers there to be a good reason why they should not.
• Disclosure is restricted, although it is wider than in the STS.
• Oral evidence at trial is limited to identified issues or witnesses, as directed at the CMC or agreed between the parties.
• Submissions at trial are generally made in writing, with oral submissions and any cross-examination to be subject to time limits decided at the CMC or agreed between the parties.

Impact and Implications

The STS aims to provide a heavily streamlined court procedure applicable for certain types of cases. Parties wishing to make use of the Scheme will need to determine at an early stage whether their dispute is simple enough to be suitable for the Scheme, which may prove difficult in some circumstances. The STS is also reliant on the Court having sufficient capacity to hear claims within the expedited time period.

The FTS provides a slightly lower level of streamlining applicable to all cases, focusing mainly on reductions in disclosure and the shortening of trial lengths by the reduction in oral evidence and submissions. Together, the STS and FTS provide a mid-point between the “rough justice” offered by adjudication and the complete but sometimes time consuming rigour of full blown TCC litigation.

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Reference: Civil Procedure Practice Direction 51N