Commercial trials should not be listed for more than three months, according to new proposals laid out by a high-level working party looking to cut the cost of complex commercial litigation.
The proposals, published today (6 December) by the post-BCCI commercial litigation working party chaired by Mr Justice Richard Aikens, put forward a number of changes designed to ward off the escalating costs of large-scale commercial litigation.
Other recommendations by the group – which was formed by Commercial Court Users Committee (CCUC) chairman Mr Justice David Steel in January 2007 – include limiting opening and closing speeches to two days, restricting opening arguments to 50 pages and imposing a 25-page limit to statements of case, as well as limiting the length of witness statements and expert reports.
The proposals, which come after the collapse of high-profile trials including BCCI and Equitable Life, were accepted by the CCUC last week (28 November) and are now set to be applied for a trial period between 1 February and 31 July, 2008.
If successful, the proposals will be adopted permanently before the completion of the new Commercial Court in 2010.
The nine-strong working group, which includes Clifford Chance partner and London Solicitors Litigation Association president Simon Davis, also proposed a ‘docket system’ allowing two judges to follow a case throughout its duration, as well as encouraging judges to offer provisional views on complex issues and strike out cases when necessary.
Commenting on the group’s findings, Aikens said: “Recent cases have highlighted the need for the Commercial Court to look carefully at its procedures and large case management arrangements to ensure they remain up to date and relevant for the business community we serve.”
He added: “Many of our proposals have been designed specifically to ensure that cases remain manageable not just for judges but also, critically, for clients, who rightly feel that aspects of… complex litigation have become too expensive and drawn out.”
Davis said: “The proposals ensure that the Commercial Court continues to lead the way in resolving clients’ problems in a business-like manner.”
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Few will disagree with the observation that Chancery and Commercial Court guides did not represent a radical departure from relatively straightforward application of the CPR. The report and recommendations of the working party constitutes the first real attempt to fashion a procedural code designed to handle heavy and complex litigation effectively and in the interests of the business community.
The Aikens report is a significant missed opportunity and goes nowhere near far enough in its recommendations. Cost certainty and cost reduction are key concerns for all clients in the litigation process and with the primary driver of costs being the length and complexity of the current English system, decisive action was and is required to streamline it.
It is a well thought out and argued report. Its success though is going to be heavily dependent on whether judges embrace the changes and, just as importantly, are given enough preparation time to get to grips with the key issues.
The work of the Working Party and the judiciary is to be commended. Criticism that it is not far-reaching enough is misplaced: the evidence of the last two highly successful Legal Week Litigation Fora demonstrate that the consensus for positive reform is a growing one. This is a well judged report, rightly echoing many of the comments identified by Legal Week on both the 2007 and 2006 occasions.
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