The London Commercial Court keeps getting better!

Many clients choose to have their disputes decided by the Commercial Court in London because after the initial Court fee of US$1,500-3,000, it is “free” to use. London Maritime Arbitration, in contrast, has a smaller initial fee of about US$300, but thereafter the parties have to pay the Tribunal for the time they spend on the case. The Commercial Court is very aware of its importance as the World’s main venue for resolving shipping and trade disputes, and it has been making efforts recently to improve the service it provides.

Following the proposals and recommendations of the Commercial Court Long Trial Working Party Report, in February, the Commercial Court commenced a six month trial of the new procedure to be adopted in “Heavy Complex Cases” . This is aimed at ensuring that such cases are handled in the most efficient and cost effective way. Heavy Complex Cases have not been defined, but will depend on the complexity of the legal and technical issues, the number of parties involved and the amount of money at stake. This initiative has been taken following harsh criticism of the procedure and case management of the Commercial Court in cases such as the BCCI/Three Rivers litigation, where the length of trial and the costs exceeded all expectations. Although the report focused on Heavy Complex Cases the recommendations in the trial period are being applied to all cases in the Commercial Court, which may intervene of its own volition even if the parties have already agreed directions.

A checklist highlighting the most important changes to the Commercial Court procedure is set out below:

• Statements of Case

These are not to exceed 25 pages in length without the Court’s permission. Formal Replies are to be pleaded only where necessary and are not to be used as an opportunity to go over issues already pleaded.

• List of Issues

This is not to exceed 10 pages, and is to be agreed at the first case management conference (CMC). Thereafter, this document will be the focus for Disclosure, Witness Statements and Experts’ Reports, and it is to this List that these documents have to relate. Statements of Case will now take second place to this Court document.

• Witness Statements

These are to be as brief as possible (limits may be imposed by the Court), and, as mentioned, drafted by reference to the List of Issues. To avoid duplication of documents Witness Statements should not attach bundles of exhibits. There should be no overlap between the Witness Statements provided by any one party.

• Experts’ Reports

These are to be as brief as possible and, as mentioned, drafted by reference to the List of Issues. Again, the Court may consider limiting their length.

• Disclosure

The Court is to take an aggressive stance on the extent of disclosure. Schedules are to be prepared by the parties setting out lists of the documents required, and the Court will identify the scope of disclosure by reference to the List of Issues and these schedules.

• Client Accountability

A senior client representative is to sign a Statement of Truth at the outset and again before trial verifying the Statement of Case. An ADR statement is to be signed to confirm that appropriate methods of alternative dispute resolution such as mediation have been considered internally and between the parties. Clients may even be requested to assist the Judge at various case management stages.

• Costs

The parties are to furnish the Court with regular costs updates. The Court is encouraged to request payments on account where the sums involved are large, and if at any stage the Court considers a party has acted unreasonably, it should make costs awards to discourage that behaviour. If possible such awards should be assessed summarily and payment ordered immediately.

 

• Technology

The parties and the Court are to examine the use of IT to reduce the cost of the trial and minimise the burden of litigation. In this connection it is anticipated that the Commercial Court will have moved to a new building by 2010 when, it is hoped, trials will be on their way to becoming paperless.

• Length of Trial

Trials involving two parties should not be listed for more than 13 weeks.  Opening and Closing speeches should not exceed 2 days (in the BCCI case, Counsels’ openings were estimated to last in the region of 3 months).

By reducing the cost and length of Commercial Court trials, it is hoped that the new procedure will save money and time, making London an even more attractive jurisdiction in which to litigate. We will have to wait and see how well the new procedure has worked and what further changes may be required before final implementation.

tony.george@incelaw.com

camilla.tillyard@incelaw.com