Two new schemes are being tested by some of the Rolls Building courts, including the TCC. Could they offer cost savings on selected construction law cases?

Sheena Sood

A number of Rolls Building courts, including the Technology and Construction Court (TCC) are currently piloting two new schemes: the Shorter Trial Scheme (STS) and the Flexible Trial Scheme (FTS), with the aim of achieving shorter and earlier trials for business-related litigation, at a reasonable and proportionate cost. The two schemes have been brought in by new Practice Direction 51N and apply to claims issued on or after 1 October 2015.  

The schemes come on the back of a consultation document published by judges from the Rolls Building courts setting out proposals for improvements to commercial litigation in the High Courts. Pilots of the schemes commenced at the start of the new term in October 2015 and are scheduled to last for two years at which point one or both of them may be incorporated into the main body of the Civil Procedure Rules. 

The aim of the STS is to have trials listed 10 months from the issue of proceedings, with judgment six weeks thereafter. Trials will last no longer than four days, including reading time, and all claims in the STS will be allocated a designated judge at the first case management conference. Neither scheme is mandatory - a claimant must “opt in”, although the court may encourage parties to do so in appropriate cases. The defendant has a right to apply to transfer the case out of a scheme on grounds of suitability; this must be done promptly.

Under the STS, the requirement to comply with any applicable pre-action protocols is substituted by a simpler procedure.  A Letter of Claim should be sent notifying the defendant of its intention to issue proceedings in the Scheme and the defendant will have 14 days in which to respond.

Particulars of claim under the STS must be served with the claim form, should be limited to 20 pages and accompanied by core documents. Similar requirements apply to the defence. This may lead to front loading of costs, with a need to identify core documents at the outset; it will be interesting to see how this is managed.

The STS will be attractive to parties who do not want or need the burdens of full pre-action procedure, costs management, or large-scale disclosure

Standard disclosure will not apply under the STS. Instead, an arbitration style approach will be taken, with disclosure limited to documents relied upon and documents requested by the other party and either agreed or ordered.  Document requests will be exchanged not less than 14 days in advance of the CMC. The scope of witness/expert evidence is also limited.

Parties can also avoid costs management rules set down by the Jackson Reforms which are disapplied to all cases in the schemes unless the parties otherwise agree.

The STS will not be suitable for all disputes; specific noted exceptions include cases involving allegations of fraud/dishonesty; requiring extensive disclosure and/or reliance on extensive witness/expert evidence; involving multiple issues/parties; or for Intellectual Property or public procurement cases. However, the STS will be attractive to parties who do not want or need the burdens of full pre-action procedure, costs management, or large-scale disclosure.

The FTS, as its name suggests, is less about speed (like the STS) and more about allowing parties to tailor litigation to suit their particular case. It is generally a less prescriptive scheme. The FTS focusses on disclosure and trial and provides considerable flexibility to the parties to agree a procedure appropriate to their case which the court will seek to respect. However, the court retains ultimate control over the procedure to be adopted.

The FTS encompasses pre-trial disclosure, witness evidence, expert evidence and submissions at trial. It is designed to encourage parties to limit disclosure and to confine oral evidence at trial to the minimum necessary for the fair resolution of their disputes. The FTS may perhaps appeal to parties seeking arbitration-style flexibility, without opting for out of court proceedings altogether.

The schemes represent practical and cost efficient solutions to address criticisms within the English civil justice system and are to be welcomed; they offer an attractive alternative to adjudication and should be embraced for the right cases.

There is a risk that some claimants may seek to shoehorn a case into the STS in order to apply pressure to settle. It is expected that the courts will apply sanctions in costs where clearly inappropriate cases have been issued under these schemes which later have to be taken out.

Some litigants may prefer to avoid the Schemes in order to force a defendant to give extensive disclosure in the hope that something may turn up to support their case. In such cases, it will be open to a defendant to seek an order from the court that the case be brought under either of the STS or FTS.

As always, the success of the schemes will depend on how they are implemented by litigants and the courts. If used correctly, the STS and FTS should allow for streamlined procedures and potential savings on legal costs.

Sheena Sood leads the construction, engineering and infrastructure team at Beale & Company Solicitors