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Litigation lite? The Shorter & Flexible Trials Pilot Schemes

The Technology and Construction Court is taking part in a trial initiative which may help bring about quicker and cheaper construction dispute resolution. How will it work?

The Shorter & Flexible Trials Pilot Schemes (‘the schemes’) begin on 1 October 2015.

One of the courts trialling them is the Technology and Construction Court in London.

The schemes will run for two years and apply to claims issued on or after 1 October.

The schemes are potentially significant, as they may become an important staging post on the road to a quicker, cheaper and more flexible forum for construction dispute resolution.

It is hoped they will allow parties to operate ‘litigation lite’ which will produce the ‘right’ answer without all the cost and delay of full-blown litigation. 

The question is: will the schemes deliver this and be a success?

The Shorter Trials Pilot Scheme

CPR Practice Direction 51N contains the new rules and it is well worth looking at them before issuing your next claim. 

The Shorter Trials Pilot Scheme (STS) is the main focus of the new rules and the most radical of the proposals.

It seems to be envisaged that cases suitable for the STS are those that are more complicated than CPR Part 8 claims, but where the factual and expert evidence fall within a relatively narrow compass.

While construction disputes usually require expert evidence, it is not unusual for the expert evidence to be focused on a relatively narrow area (say, quantum in a final account dispute).

“These appear to be interesting ways to get a dispute decided relatively quickly but in a far less arbitrary forum”

Also, TCC judges are very familiar with the types of expert evidence they see and so are able to cut through it much quicker than judges in other courts.

This means that for users of the TCC, it may well be possible to use the STS where there is going to be some expert evidence on matters which are not going to be too contentious.

The STS is also suited to cases that don’t require extensive witness evidence.

However, one issue with the STS is that it does not allow for multiple parties. 

Details of the scheme

An advantage of a case in the STS is that all proceedings will be heard by the designated judge as far as possible.

The Particulars of Claim and the Defence (and Counterclaim) must not exceed 20 pages each.

This may not always be possible, but a similar rule has been in force in the Commercial Court for some time and it seems to have worked. 

The disclosure of documents will be significantly limited.

The amount of disclosure is often a major factor in driving up costs and so limiting disclosure should help a great deal in reducing the overall costs of the litigation.

It is interesting to note that cost budgeting and management will not apply unless the parties agree otherwise.

It is an aim of the STS that the trial should take place within 10 months of the starting of proceedings.

Finally, the trial length is capped at four days including reading time.

Given that the judge should be familiar with the case (as hopefully the same judge deals with the matter all the way through), the amount of reading time should be minimal.

The Flexible Trials Pilot Scheme

The Flexible Trials Pilot Scheme (FTS) enjoys far less prominence than the STS in the new rules and is focused specifically on keeping disclosure and evidence as pared down as possible.

Normal costs budgeting and management appear to apply.

It is not certain how this really differs, in practice, from Part 8 claims, but we will look at that further in our next article.

Overall, the STS and the FTS appear to be interesting ways to obtain ‘litigation lite’ and also to get a dispute decided relatively quickly but in a far less arbitrary forum than adjudication often is.

There seem to clear advantages to be had from running disputes via the schemes for the right case.

Tim Seal is group director at Davitt Jones Bould and Luke Wygas is a barrister at 4 Pump Court. This is the first of two articles on the Shorter & Flexible Trials Pilot Scheme - part two will be published soon.

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