A judge has refused a party’s application to remove their case from the shorter trial scheme.
His Honour Judge Pearce, sitting in the High Court, also found that the scheme’s approach to disclosure was similar to that of the disclosure pilot that began last month.
Excel-Eucan Ltd v Source Vagabond System Ltd  EWHC 3864 (Ch) concerns the relationship between the claimant, which owns a patent in the so-called link tail bag – an ammunition carrying bag used by armed forces in a number of countries – and Source, which pursuant to a licence is the manufacturer of the bag pursuant to the patent.
Source contends that Excel was in repudiatory breach of the licence by reason of an email sent to the Ministry of Defence, although other issues also arose.
Practice direction 51a states that the shorter trial scheme will not normally be suitable for cases which are likely to require extensive disclosure and/or reliance upon extensive witness or expert evidence, or where the trial will be longer than four days including reading time.
HHJ Pearce said it was “a valuable scheme that has been piloted and, in my understanding, has done much in accordance with its aim to reduce costs and delays in trials within this building”.
The defendant said the complexity of the case, the need for disclosure and the likely length of trial meant it was not suitable.
The judge observed the “interrelation” between the scheme’s approach to disclosure and the new disclosure pilot, noting that their ethos was similar.
“For example, even if a case like this were not within the shorter trial scheme, under the disclosure pilot at the first case management conference the court would be looking with care at what level of disclosure is required.”
Under the scheme, the usual rules of part 31, and in particular standard disclosure, do not apply; rather, the parties must tailor requests for disclosure, but the judge said this “comes some way similar to that which the disclosure pilot is aimed to achieve”.
HHJ Pearce continued: “It seems to me that that kind of complexity should not blind the court to the reality of what the shorter trial scheme is about, which is whether the case can properly be contained within the trial estimate of no more than four days and whether it truly requires extensive disclosure and/or reliance upon extensive witness or expert evidence.”
The claimant’s contended that transferring the case out of the scheme may make it too expensive, but HHJ Pearce said that “if more expensive, longer litigation is required to do fairness to the issues between the parties, then that fact cannot stand in the way of the case being transferred”.
There was nothing about the case which “by definition” made it unsuitable for the scheme, he said, and the kind of disclosure being sought could properly be accommodated within it.
Here, the statements of case were “lengthy”, while the amended defence and counter claim went “a little bit beyond that anticipated in the practice direction”.
But there was also nothing in the number of witnesses (five) or the documents before the judge in terms of complexity to take the case out of the scheme.
“I therefore come back to what I consider to be really the central issue in any application of this kind, which is whether this case can be properly be accommodated within a four-day trial estimate to include reading time…
“As I see the issues within the case they are not of such complexity as to need this trial to require a time estimate of as much as six days as suggested by the defendant or indeed even five days. In my judgment, a trial estimate of four days including reading time is one extra for a case of this kind.”