The Technology and Construction Court’s trial initiative to bring about quicker and cheaper dispute resolution continues. How can you take advantage?
- No costs budgeting and management
- Issue for smaller and simpler cases
- No multiple parties
- Limiting the evidence
In our first article we provided an overview of the Shorter & Flexible Trials Pilot Schemes (the schemes) that came into force in the Technology and Construction Court on 1 October 2015.
These are two-year pilots aimed at making some TCC litigation quicker, cheaper and more flexible.
In this second article we focus on a few key aspects of the Shorter Trials Pilot Scheme (STS) and how to use them to your advantage.
No costs budgeting and management
The STS excludes the Civil Procedure Rule Part 3.12 on costs budgeting and management rules “unless the parties otherwise agree”.
Whether you think that is a good or a bad thing probably depends on where you stand on the relative merits of prospective versus retrospective costs analysis – both have their fans and detractors.
Undoubtedly though, excluding costs budgeting and management will attract considerable approval, due to the well-established complaints around how expensive it is to complete and agree budgets, and how difficult it is to accurately predict cost and then follow those often arbitrary predictions.
This exclusion is consistent with the exclusion that has applied to Part 8 Claims since April 2014.
Of course, the STS and Part 8 claims have much in common in terms of being procedures created to streamline litigation, making it quicker and cheaper where possible.
Issue for smaller and simpler cases
Potentially this exclusion is a major issue for claimants whose cases are not very valuable and not too complicated.
Those cases are often the ones that see their budgets heavily slashed by the judge at the case management conference (CMC).
While it is the case that the judge has to look at proportionality from the outset, there is always an irreducible minimum which has to be done in any case.
When the cost of that minimum starts to add up to the value of the claim, clearly the parties are in trouble.
“Potentially, the exclusion of CPR Part 3.12 is a major issue for claimants who have cases that are not very valuable and not too complicated”
If the parties can sidestep that by using the STS, that is clearly an advantage – at least to the party that ultimately has its costs paid by the other side.
If the parties disagree on the exclusion of Part 3.12, that issue will fall to the court to decide at the CMC.
The party wanting the rules to apply may well have its work cut out in persuading a court that costs budgeting should apply in a pilot which excludes them.
We have seen suggestions that some sort of midway costs budgeting and management regime be used in the STS.
However, a third way between the existing alternatives feels like a step too far for now. It could emerge, however, as a recommendation from the pilots.
No multiple parties
Another issue with the STS is that it cannot involve multiple parties.
If a claimant is concerned that at some stage the defendant might want to bring in other parties, which will only slow down the litigation and make it more expensive, then getting the case into the STS could stop that happening.
Clearly, if the defendant is thinking this, it may be difficult to get them to agree to use the STS – but for now when parties are perhaps not fully aware of the implications of having cases in the STS, it may be worth having this in mind.
Limiting the evidence
Another thing to consider is that a court, early on, will be much stricter about limiting the issues and the evidence.
Therefore, if it could serve a party’s purpose to narrow the issues at an early stage (perhaps because disclosure on a wider basis might produce evidence which is unhelpful), the STS may well be the way to go.
As with all new things, there will be some bedding in of the schemes. However, as far as we can see, there are definitely tactical and practical advantages in having a case in one of them.
If a case looks potentially suitable, it is therefore worth assessing the pros and cons.
Judges, particularly in the TCC, are likely to do so, and it would be ill-advised not to be prepared to deal with the judge’s views on the topic.
Tim Seal is group director at Davitt Jones Bould and Luke Wygas is a barrister at 4 Pump Court. This is the second of two articles on the Shorter & Flexible Trials Pilot Scheme - part one can be found here.