New red rubber stamp

As of 1 October 2015 two new trial schemes are available for disputes in the Rolls Building (which includes the Technology and Construction Court (TCC): the Shorter Trial Scheme and the Flexible Trial Scheme. As their names suggest, these pilot schemes are respectively intended to (i) achieve shorter and earlier trials and (ii) add flexibility to the Court procedure . The pilot schemes will operate for two years.

Shorter Trial Scheme (STS)

The STS offers a quicker route to trial.  Cases will be allocated  to a designated judge, ideally “reaching  trial within approximately 10 months of the issue of proceedings, and judgment within six weeks thereafter”.

Some of the key features of the STS are:

  • It may not be suitable for cases which require extensive disclosure, reliance on extensive witness or expert evidence; where there are multiple issues and parties or public procurement cases.
  • Parties have the option to transfer in and out of the scheme. It is not mandatory.
  • There is a modified pre-action procedure which includes sending a Letter of Claim informing the other side that the Claimant intends to use the STS procedure and requiring a response within 14 days.
  • The particulars of claim must not be longer than 20 pages. Additional requirements for the contents of the particulars of claim are that it must include:
    • A brief summary of the dispute and identification of the anticipated issues.
    • A full statement of all relief or remedies claimed.
    • Detailed calculations of any sums claimed.
  • The case management conference (CMC) can be fixed for 12 weeks after the date for acknowledging service.
  • There is limited disclosure. Disclosure is limited to documents relied upon and documents requested by the other party. Any document requests should be exchanged 14 days in advance of the CMC.
  • It has provisions to limit witness and expert evidence. Witness statements should not be longer than 25 pages and may be limited to identified issues or topics as ordered by the Court.
  • The Trial must be no more than 4 days long and take place no more than 8 months after the CMC.
  • Judgment is provided within six weeks of trial.
  • Costs management does not apply, though the parties can agree otherwise. Parties are required to exchange cost schedules of incurred costs within 21 days of the conclusion of the trial.
  • Trial judge to summarily assess the costs of the whole case.

Flexible Trial Scheme (FTS)

The FTS procedure allows the parties to agree more flexible case management procedures. Parties are encouraged to limit disclosure and oral evidence to the minimum that is necessary to resolve the dispute fairly.

Some of the key features of the FTS are that:

  • Parties agree on a curtailed procedure for the claim which often facilitates an earlier trial date.
  • There is relatively limited disclosure, parties must disclose all known documents that are disclosable but need not undertake a search unless a specific disclosure request is made. Disclosure statements are only required when a specific disclosure request is made.
  • There is also limited oral evidence at trial and a reduced trial time. The trial can be dealt with without any oral evidence, focusing on written evidence and submissions although the Court may call for oral submissions. Any such oral submissions are time-limited and limited to specific issues.
  • FTS provides a standard trial procedure but the parties may agree to vary it.
  • Costs are reduced as a result of limited disclosure, limited oral evidence and shorter trial duration.

So what’s the real difference?

Both schemes offer flexibilty and quicker procedures.  The STS applies from the pre-actionstage, whereas the FTS only takes effect from the CMC. The STS also has a more codified alternate approach to the claim whereas the FTS follows the general rules under the CPR more closely, unless agreed otherwise between the parties.

If you have a claim which does not require extensive oral evidence and could benefit from limited disclosure then either of these schemes could be effective dispute resolution options. They could potentially provide a smoother, more efficient and more cost effective route to trial and, under the STS, judgment can be obtained within 10 months from the date of issue.

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This blog is intended only as a synopsis of certain recent developments. If any matter referred to in this blog is sought to be relied upon, further advice should be obtained.