Improving access to justice – year 1 for the shorter trial pilot scheme

The shorter and flexible trial schemes, two pilot schemes being run in the Chancery Division, were launched last year (1 October 2015) with a view to: 1) achieve shorter and earlier trials for business-related litigation; and 2) foster a change in litigation culture, by which it recognises that some aspects of trial procedure (such as document disclosure) are simply not necessary. One year on, it is worth taking a look at the scheme and to ask whether the STS is improving access for justice for claimants and defendants.

By way of background, the shorter trial scheme (STS), in part, has its origins in Australia, where such a scheme has been running successfully for years. Also, the scheme takes heavy inspiration from our own Intellectual Property Enterprise Court (IPEC), the specialised high court list, which introduced tighter case management, a short trial (2-3 days maximum), and costs and damages caps.

The STS uses some of the learnings from these examples, and has features such as:

• Case docketing (having the same judge from start to finish, where possible)
• Trial within 10 months
• Controlled or limited document disclosure
• Oral evidence kept to minimum
• 4-day trials (including judges’ reading time)
• Applications on the papers, unless a hearing is required
• Costs summarily assessed

As of September 2016, 10 cases (not just IP cases) have been issued or transferred into the scheme, which is being considered a slow but successful start by the judiciary. So much so that the pilot programme has recently been extended for a further year (to 30 September 2018).

Cases appropriate for the STS are typically identified by the parties, who issue in the relevant Chancery court. It is also possible to transfer cases into or out of scheme where appropriate. One such case, Family Mosaic Home Ownership v Peer Real Estate, a commercial property dispute, was a joint-party application to transfer into the STS.  Birss J, hearing the application (and one of the architects of the STS), considered the court’s powers to make such a transfer, and whether this was an appropriate case to do so.  Birss J was satisfied on both fronts and allowed the transfer, consequently using the opportunity (in this published judgment) to discuss how, as a result of the transfer, the dispute will come to trial faster and at lower cost thereby improving access to justice for the parties, and meeting the overriding objective of the court to deal with cases justly and at proportionate cost. On a final note, he confirmed that it would not be necessary to amend pleadings following transfer, which would have, of course, added to the overall cost.

However, despite the advantages, the STS still does not suit all parties or matters. As the STS is a high court scheme, there are no damages or costs caps, such as found in the IPEC, making the consequences of losing a case a difficult prospect for the parties. One such case, BG Electrical v ML Accessories, a registered designs and unregistered design rights matter, the defendant applicant successfully had their case transferred out of the STS, to instead be heard in the IPEC. The court took the view that the lack of a costs cap in the high court would have added unfair pressure on the defendant to settle as a result of the potential financial downside of losing. This is even despite the potential costs savings of the STS. The court also took other considerations into account, such as the defendant’s willingness to waive the damages cap (which may in itself have been a tactic to get a result), and that the potential value of the injunction (estimated value of sales over £1m) was smothered by the defendant having already agreed to redesign the products, making the value of the injunction potentially nil.

On the whole, however, the STS appears to be achieving the results it was intended to bring, such as improving access to justice, lowering costs for parties and reducing the length time to trial. The true value will only be seen in time, but the first-year reports look promising. In practice, it means that there appears to be a legitimate “fourth track” (if you include the small-claims track of the IPEC) for IP matters. By bringing IPEC-like procedure to the high court, higher-value matters can be dealt with on a much more commercial timescale and at improved cost.