A well-attended meeting of the Commercial Litigators’ Association on Monday was left in no doubt that the Commercial Court judges intend to follow closely the recommendations of the Commercial Court Long Trial Working Party
Allen & Overy were the hosts on 25 February when Mr Justice Richard Aikens, Mrs Justice Gloster and Mr Justice Andrew Smith led a panel session to talk about the practical effect of the Commercial Court Recommendations, which took effect on 1 February, and to invite questions and feedback on them.
Sir Richard Aikens was the chairman of the Working Party. Dame Elizabeth Gloster DBE was both a member of the Working Party and, it became clear, the prime author of the checklist which converts the Recommendations into a step-by-step guide. Sir Andrew Smith is the Judge in Charge of the Commercial Court. If we needed a sign that this is being taken seriously, the fielding of this team was it.
If that serious intent was the first message, the second was that the principles behind the Recommendations were all based in the CPR and were therefore potentially applicable in any court where the case warranted close management. The third was that the invitation to give comments and feedback on the Recommendations was genuinely meant and that it was a continuing invitation throughout the operation of the trial period, and not just something for the end.
Tighter control of cases was not the aim of the Working Party, but the need for such control was the conclusion which the WP came to when considering how to react to criticisms of the BCCI and Equitable Life cases. The robustness of the Court of Appeal was commended. It was not, of course, the Court of Appeal which allowed both these cases to come back into the Commercial Court.
Sir Richard Aikens said that the early identification of issues was critical, as was control of the stages linked to those issues – disclosure, witness statements, more structure and more focused experts’ reports (too often, he said, experts “pass in the night”). One aim, though not the only one was, put bluntly, to weed out bad cases.
The change which was needed was not just of management but of culture, on the part of both judges and litigators.
Dame Elizabeth Gloster focused on the checklist and on the need for comment from practitioners. One, which had been anticipated, was criticism as to front-loading of costs, already seen as an unintended effect of the CPR. There is no easy answer to this, nor did Dame Elizabeth suggest one applicable across the board. What was implied was that too many cases, looked at retrospectively, could have been run much more cost-effectively (or dismissed or brought to a settlement) if there had been tighter control at the outset. This is my gloss on it, not something said by the panel, but it presumably remains open to parties to argue, of any specific stage, in any particular case, that the interests of proportionality and justice are not best served by a proposed order.
Dame Elizabeth did say expressly that flexibility would be needed in working through the check-list and that the check-list itself may be modified by experience and user comments. It had been suggested, for example, that there was ambiguity as to whether the disclosure schedule had to be prepared before or after the CMC, and comment had been made about the link between the disclosure schedule and the issues list in circumstances where the latter may not have been finally decided.
Dame Elizabeth gave us a taste of her dislikes – long witness statements, pleadings with extensive recitations of facts, and unstructured lists of issues were on her hit-list. As to disclosure, she wants to see swift moves towards paperless litigation and a greater use of IT. It was unacceptable, she said, and not just for ecological reasons, to fill a court with ring binders of paper – “stowaways of hard copy documents” she called them – as “counsel’s comfort blanket”.
Lastly, she referred adversely to what she called a “feeble approach” to striking out or summary judgment. I was pleased that my slides for a webinar on the following day already included reference to the power to strike out, inter alia, for “failure to comply with a rule, practice direction or court order” [3.4(2)(c) CPR]. If I needed any encouragement for this line of approach, I got it.
Sir Andrew Smith talked about the practical impact of the trial on pending cases. The focus, he said, is on matters due to come to trial in the Michaelmas term. He emphasised that the review of cases whose management was already advanced would take account of work already done and would not require a reworking to fit the new rigour where costs would be wasted as a result. He did not say this, but I imagine the possibility that there will be cases where the costs clearly to be saved by a revised approach will outweigh the costs already incurred.
There were some good questions from the floor. The one which will be of most interest on the disclosure front concerns those long and wearisome exchanges of correspondence about alleged defects in disclosure (“We refer to point 13 of your ninth letter of 8 June in reply to point 8 of our third letter of 28 May”) which then gets repeated in and annexed to applications. Such correspondence is sometimes unavoidable (I speak as one who sometimes has to do the background work which generates the points at issue) and the question concerned not the need for the original correspondence but the way in which it is presented to the court. What the court wants is a succinct summary of outstanding points – much the same as the judges want in relation to everything else. Who said what to whom when may prove to be important, but the recital of it does not necessarily have to clutter up the primary documents on the application.
The Commercial Court Recommendations have attracted a wide range of comments, which perhaps suggests that the Working Party got the principles about right. Those who say that they did not go far enough have perhaps overlooked the fact that much more than this would have required either primary legislation or, at least, the involvement of the Rule Committee (no one is knocking the Rule Committee, merely recognising that Rule changes require formality and time and, crucially, the loss of the ability to refine and modify proposals after seeing how they work in practice).
At the other extreme, some anticipate not just front-loaded costs but more costs. I do not know if those who say this have put forward any different proposals without such a perceived risk. We shall see – no doubt anyone with concrete examples will take up the judges’ invitation to tell them about them. We do not hear many, though, who say things are just fine as they are presently managed.
The ambition – to change the culture of judges and litigators is a big one. The three judges left their audience in no doubt as to the vigour with which they intend to attack what they see as the problems. There is no avoiding it, so opponents will have to make the best of it.
I end with a quotation from Mr Justice Aikens on the day when the Recommendations were announced.
..recent cases have highlighted the need for the Commercial Court to look carefully at its procedures and large case management arrangements to ensure that they remain up to date and relevant for the business community that we serve. 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 the process of heavy and complex litigation have become too expensive and drawn out.
What we have seems to me to be a pretty good shot at it. The format – a set of management procedures within the existing rules – has the significant benefit of flexibility. If they do not work, they can be fine-tuned. If that does not bring down the time and costs of litigation – and not just within the Commercial Court – then it will be the clients who vote with their feet.