Shorter and flexible trial schemes made permanent

Elliott: STS suitable for a very broad range of cases

The shorter trials scheme (STS) and flexible trials scheme (FTS) became permanent this week, after three years of piloting.

The 100th update to the Civil Procedure Rules, which came into force on 1 October, also formally confirmed that the disclosure pilot would start on 1 January 2019.

Under the STS, the case is managed by a docketed judge with a trial date fixed for not more than eight months after the case management conference and judgment within six weeks.

The ordinary disclosure order in STS cases is for the production of documents upon which the parties rely. The maximum length of a trial is four days and costs budgeting does not apply.

The FTS allows parties to agree a more simplified and expedited procedure, although the court retains ultimate control.

According to a note by Clare Elliott, a barrister at Hailsham Chambers in London, the pilot phase of the STS has been used primarily for claims heard in the Commercial Court and Chancery Division, while the FTS has been less popular, “perhaps because of the degree of uncertainty surrounding its use”.

She continued: “The new practice direction does not provide any guidance on which cases, or types of cases, might be suitable to be heard under the FTS. It might also be thought that similar results could be achieved through other means such as arbitration or adjudication.”

Now that the schemes have been permanently implemented, Ms Elliott said both claimants and defendants would need to have them in mind at the very beginning of any claim.

“The STS is likely to be suitable for a very broad range of cases. [Cases run under the pilot show] that high-value claims and complex technical claims can still be heard under the scheme, providing that the trial lasts no longer than four days.”

But the tight time constraints meant judges were likely to criticise parties who agreed to use the STS but insisted on fighting procedural points at trial.

This happened in L’Oréal SA v RN Ventures Ltd [2018] EWHC 173 (Pat), in which Mr Justice Henry Carr said such disputes should be resolved before trial if at all possible.

Also, while litigators might be pleased to avoid costs budgeting under the STS, Ms Elliott stressed that costs bills would still be subject to judicial scrutiny on summary assessment.

She added: “It is likely that there will be a considerable number of early applications regarding whether claims should be transferred into or out of the STS.

“Parties disputing the applicability of the scheme should be able to give good reasons why it is not appropriate where it could save time and money for their clients.”

Other changes in the update introduce electronic working into the Queen’s Bench Division on a pilot basis from 1 January 2019 until 6 April 2020, and confirm the power of a district judge to deal with proceedings to commit a person for breach of an injunction.

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