The recommendations centre around the aim of requiring the parties and the Court to identify the pivotal issues between the parties as soon as possible, and undoubtedly make sense as a matter of theory. But can they have any real impact until the
First, a word about the object of the exercise. No amount of procedural reform is going to make High Court proceedings on an adversarial basis anything other than expensive, in relative terms. Paradoxically, the more technology that is available for use in court, the greater the expense. For example, electronic trial bundles bring many advantages, but by the time they have been hyperlinked to witness statements and other key documents, they are not a cost-saving measure. Given this reality, our focus needs to be on the efficacy of the trial process — parties who are investing in proceedings need to know that every possible efficiency has been built in.
It is worth looking at what is already becoming clear from recent cases such as Springwell and Boxclever and from our experience of the current pilot scheme that the
Take the creation of lists of issues — designed sensibly to address the “tendency of parties (through their lawyers)” (from the report and recommendations of the
For practical purposes, a well-drawn list of issues can displace formal pleadings at trial and is undoubtedly one of the most successful and key recommendations. It enables both parties’ submissions to be more structured and effective (and shorter) and facilitates far more precise and realistic case management. By refining the issues that need to be addressed and the evidence that will be required, a judge can more easily set out a realistic timetable and plot the steps required to progress a dispute from the case management conference (CMC) to trial. Court time and resources can, in turn, be allocated appropriately.
Our word of caution would be that, to be as effective as possible, it requires the presiding judge to accept the burden and have the time available to invest at an early stage in identifying for himself what those key issues are. Left to the parties alone (so, for example, on the basis merely of a direction that the parties meet and agree a list of issues), there is still a high chance that key issues will not be ‘flushed’ out. Equally, while it is all very well and good to explain to parties that the Commercial Court is a forum that is available to them to seek redress of real and genuine issues in accordance with the overriding objective, which may mean that some issues are not litigated because proportional allocation of time and resources militates against it (Sutradliar v Natural Environment Research Council [2006]), that proposition will only stand up to scrutiny if the decisions about what is and what is not proportionate are made on an informed basis.
This will also require a greater flexibility in allowing and supporting the parties to flush out each other’s cases through a sensible process of particularisation, rather than waiting to see what emerges as relevant at trial. A good example of this is Berezovsky v Abramovich [2008] in which Justice Mackie was faced with 50 requests for further information. In dismissing the majority of the requests, Mackie focused on the distinction between what was background information and what was material information. That analysis in itself requires more than a fleeting understanding of the case.
The introduction of ‘teach-ins’ on expert issues for the judge seems to us to be one of the best innovations — particularly when the ‘teach-in’ takes place during trial and has evidential status. The nature of the expert issues will to a large extent determine how useful these sessions are, but in our view they could become invaluable when technical issues (as distinct from pure expressions of opinion) are in issue.
The introduction by Justice Aikens in Boxclever of written questions raised by the judge in response to the parties’ closing written submission seems to us to be very powerful — what better way to focus the parties’ minds on the idea that, in the judge’s eyes, their arguments are not entirely devoid of imperfection?
The provision of judicial assistance is key to ensuring effective case management. It is at its most valuable in the form of a junior barrister who can act as a conduit for all communications with the judge. It facilitates a far more dynamic form of communication and enables queries to be raised concerning, for example, the judge’s understanding of issues that probably would not be raised at all if the only option was to do so at a CMC in open court.
Less successful, in our view, is the identification of preliminary issues at an early stage. Again, this requires the judge to have the time available to be on top of the issues and to overcome any concerns about the derailing of the timetable overall by what might be considered an inevitable appeal by the losing party. We would similarly urge a greater willingness on the part of the judiciary to be prepared to make their thinking transparent from an early stage. However, this is more indicative of the need for our courtroom culture to shift as much as any particular rules or recommendations being made.
This is not the place to provide a lengthy analysis of all of the recommendations in practice — suffice to say that, overall, they are clearly far more helpful than not. Arguably, however, the civil procedure rules (CPR) have already provided our judiciary with the means of managing cases along these lines, so why did they not have an adequate impact on case management? What is to stop the same impediments appearing in future? Sir Anthony Clarke hit the nail on the head when he said that successful case management “lies not simply with the provision of the right tools. It lies with the proper use of those tools”.
In looking at what the impediments to the effective use of the CPR have been, we come back to two main themes — one of which is already apparent from this article so far. That is the need to ensure that sufficient resource is available to Commercial Court judges to enable them to behave in the way that the CPR, now strengthened by the Committee’s recommendations, demand as a matter of logic. We are effectively rewriting the judicial role and it is unrealistic, not to say naive, to expect our judges magically to take on this new role without providing the support for them to do so.
Second, if we are expecting our first-instance judges to be more transparent in their thinking and more proactive from an early stage, they patently need the support of the Court of Appeal. A consequence of efficient case management is the front-loading of key interlocutory disputes that will shape the outcome of a case — from the determination of the scope of disclosure to a strike-out application.
An inevitable consequence is the involvement of the Court of Appeal, which is likely to determine future litigants’ expectations of commercial proceedings in
For the change in culture and approach that is suggested in the
Clare Canning is a partner and Jennifer Fox an associate in Mayer Brown’s commercial dispute resolution team.
LitigationJuly2008
