Practitioners in the Birmingham Mercantile Court are being sent a draft order for directions which includes provisions aimed at tighter case management. Why is this useful, and what if you genuinely think that the proposed order should not apply in your case?
I reported (Commercial judges spell out case management intentions ) that the prime movers behind the Commercial Court Recommendations had emphasised that their procedures for streamlining case management were applicable, where proportionate, in any court. This follows from the fact that the procedures – now having a trial period from February to November – involved no amendments to the Rules, and all fit within the court’s management and discretionary powers.
Put loosely, this means that the court can do what it reasonably thinks appropriate in any particular case, provided that the express rules are complied with and provided that the exercise of the management powers fits within the overriding objective. There is a difference, however, between what might be done in a particular case and what is adopted as a general procedure applicable to all cases. Court users need some degree of certainty and consistency, both in different cases in the same court and between different courts.
There are three broad ways in which a court can begin to impose its will on its users – to establish that “this is how we do things here”.
The most formal is to update the Court Guide – there is a collection of Admiralty, Commercial and Mercantile Court Guides on the Courts Service website. These require consultation and buy-in from both judges and users and, although this method allows some flexibility within the rules, it is a non-trivial matter to change them. The page to which I have referred you has no mention of the Commercial Court Recommendations which have been in force for a month, and the lay user might well be perplexed to find that the Mercantile Courts in Birmingham, Bristol, Cardiff, Chester, Leeds, Liverpool / Manchester and London each have their own Guides (I am not saying that this is unnecessary, merely observing that it is confusing).
At the opposite extreme, the least formal way of imposing good practice is for the courts simply to make it clear, case by case, what they expect, so that the word gets around. It is said, for example, that practitioners in the West Midlands are blowing the dust off their copies of the Practice Direction to Part 31 because almost every firm has someone who has been caught on the back foot for non-compliance with the obligation to discuss electronic sources with opponents. That is, however, a long, slow way to change habits and practices, and one fraught with potential inconsistencies derived from the particular facts.
The middle course is for courts to devise standard draft orders for directions and to send them out as soon as a Defence is served. That has been happening in the Birmingham Mercantile Court where His Honour Judge Simon Brown QC and Her Honour Judge Alton have adopted a standard form of draft order which can be modified and agreed, or made by the court under Part 3.3 CPR (power to make order of court’s own initiative) or under Part 23.9 CPR (application without notice). There is a similar initiative in hand in Bristol.
There is nothing in the draft which is not derived directly from the rules and/or from the Commercial Court practice. Parties must, for example, file an agreed draft structured and sub-divided List of Issues (with headings) to be judicially settled at Case Management Conference. The obligation to discuss electronic source of documents, expressed as
Parties to discuss any issues arising regarding searches for, and preservation of, electronic documents and to cooperate as to the format in which electronic copy documents are to be provided upon inspection. In the case of difficulty or disagreement, the matter to be referred to the Court for direction at the earliest practical date
…comes more or less verbatim from Paragraph 2A.2 of the Practice Direction to Part 31.
The draft order for Standard Disclosure – only supporting and adverse documents to the stated cases of parties, pursuant to CPR 31.6 simply spells out what Part 31.6 CPR actually says, whilst the addendum upon issue(s) in the List of Issues reflects the Commercial Court’s focus on what the Commercial Court Recommendations sensibly refer to as a “surgical” approach to Disclosure. There is provision for Specific Disclosure of defined documents or classes of documents and for Disclosure and Inspection to take place in stages.
None of this, I stress again, creates any new obligations, but it does serve as an effective reminder, delivered to the parties in easily-digested form, just when it is needed. User reactions are apparently positive (and are being positively sought out) and the approach is being shared with other courts to get feed-back and comments and to work towards a consistent approach. This parallels the approach in the Commercial Court, which is at pains to stress that it wants continuing feed-back on the working out of the Recommendations throughout the trial period, not just criticism at the end.
What does this mean for the practitioner? Well, you know what to expect for one thing, and do not have to cross-refer to multiple sources to get ready for a Case Management Conference or, rather, the form of draft order explicitly makes the cross-references for you. It should make it easier to jolly your opponents along to do their bit – they cannot, for example, “overlook” the provisions of the PD to Part 31 if the draft order provides for compliance with it.
There is a point worth making, though, about these drafts and about the Commercial Court check-list. They may represent the most common forms of directions, but they remain discretionary. That means it is perfectly proper to argue that the overriding objective and the circumstances of any particular case warrant a departure from the norm. I have heard, it is true, of one judge who (by my informant’s account anyway) stuck doggedly to the check-list when every other factor pointed to a different approach. As always, I am keen to hear of experiences, good and bad, of those who find their cases being managed more rigorously than they are used to.