As you may be aware, there has been long standing concern with regard to the time taken to bring commercial matters to trial. As a result a pilot has been commenced in the Rolls Buildings Courts (the Patents Court and the Companies Court, the Commercial Court, the London Mercantile Court and the Technology and Construction Court) which will run until September 2017. A new practice direction 51N has been created introducing two new schemes, namely the Shorter Trial Scheme and the Flexible Trial Scheme.
With the Shorter Trial Procedure the aim is to progress claims to final trial and Judgment within a year of issue of proceedings, trials being limited to 4 days. The procedure is considered appropriate for those cases which can be fairly tried on the basis of limited disclosure and oral evidence. The procedure is not normally suitable for cases involving allegations of fraud or dishonesty; where there is extensive disclosure, witness evidence or expert evidence; where there are multiple issue and/ or multiple parties; cases in the Intellectual Property Enterprise Court and public procurement cases.
The suitability of a case to be dealt with through the Short Trial or Flexible Trial Schemes will be considered at the first case management conference.
With regard to the costs of the Shorter Trial Procedure, the practice direction that states that:
2.56 CPR 3.12 shall not apply to cases in the Shorter Trials Scheme unless the parties agree otherwise….
2.59 Save in exceptional circumstances :
(a) The Court will make a summary assessment of the costs of the party in whose favour any order for costs is made and:
(b) Rules 44.2 (8), 44.7 (b) and Part 47 do not apply.
The long and the short of the costs provisions relating to the Shorter Trial Scheme is that costs management does not normally apply unless the parties agree otherwise. If the parties are agreed that costs management should apply then an order to that effect should be applied for at the first CMC and directions obtained in relation to the timetable for the filing of costs budgets. In addition the overall costs of the claim will usually be dealt with by summary assessment unless there are cogent reasons for the Court to order otherwise.
The Flexible Trial Procedure is designed to provide a flexible approach to case management in the hope that the process will be simpler and swifter. The process usually involves more limited disclosure and oral evidence at trial being limited to the minimum necessary to allow a fair resolution. There do not appear to be any separate rules relating to costs in the practice direction relating to the Flexible Trials Scheme but the whole idea of flexible case management is to reduce the overall costs of the matter.