Fieldfisher recently attended a packed AIPPI event featuring Mr Justice Birss, who spoke compellingly about the new Shorter and Flexible Trials Schemes available to litigants in the UK. The Schemes are a response to the (oft complained of) delays and expense of the current court system. In his pitch to potential users of these new Schemes, Mr Justice Birss elaborated how he and the wider judiciary hoped they would facilitate simpler and cheaper litigation in the UK.
The two Schemes are still pilots and are only open to cases in the Rolls Building issued between 1 October 2015 and 30 September 2017. The Rolls Building brings together much of the business litigation in the UK, covering the Commercial Court, the Technology and Construction Court, the courts of the Chancery Division and the Mercantile Court. The Schemes are set out in new Practice Direction 51N and reflect different philosophies of case management: court control vs. party control.
Shorter Trial Scheme
Under the Shorter Trial Scheme the court will retain control over proceedings but litigants are able to benefit from resolving disputes in a shorter time period with lower costs. The foundation of this Scheme is largely derived from IPEC with its streamlined directions and pro-active case management. Unlike IPEC, however, the Shorter Trial Scheme is open to 'big ticket' litigation with no cost caps. IP cases could be well placed to exploit the Scheme, so long as the case itself is suited to limited disclosure and oral evidence inherent to this pilot.
Other key factors in the Shorter Trial Scheme include: a non-consensual approach to issuing proceedings (claimants are free to issue directly into the Scheme without the defendant's consent); a docketing system to ensure that the same judge will deal with case management and the trial; trials last up to four days (including reading time); limited cross-examination and only key parts of the case put to witnesses; trials within 8 months of CMC (with the date for trial being fixed at the CMC) and judgment within 6 weeks of trial. Costs will be assessed summarily with no requirement for costs budgets.
Mr Justice Birss also highlighted that whilst not set out in the Practice Direction, cases can be transferred in to or out of the Scheme as appropriate, confirming the procedure for doing so in his recent case Family Mosaic v Peer Real Estate.
Flexible Trial Scheme
The Flexible Trial Scheme envisages greater party control over the litigation procedure. Both sides must agree the procedure in advance but the emphasis is on flexibility and choice, with parties being able to adopt a procedure that suits their particular case. The logic being that if this consensual approach works in arbitration, then why not in court?
A default Flexible Trial procedure is set out in the Practice Direction however, providing the court does not object, the parties are free to adapt this as they see fit. Features of a Flexible Trial could include limited disclosure; determining some issues on the basis of written evidence only; and oral evidence being limited to key witnesses and issues. Whilst docketing may be permitted, Mr Justice Birss confirmed (unsurprisingly) that a 'pick-your-own-judge' approach would not be permitted.
Is the tide already changing?
The push by Mr Justice Birss to encourage uptake of these new Schemes follows the Practice Statement released by Mr Justice Arnold in December 2015, in which he set out Patents Court's ambition to resolve patent cases within 12 months of issue. This resolve has already been embraced in Celltrion v Biogen, where Mr Justice Carr noted that "the Practice Statement represents an important change to the management of patent cases". For a more detailed review of this case, please see our recent blopost here.
There seems little doubt as to the commitment of the three patents judges in increasing the attractiveness of litigating in the UK courts by encouraging a prompt resolution of disputes. We therefore expect these judges in particular to ramp up their proactive case management in order to speed up patents cases wherever possible.