On 3 February 2022, the Admiralty and Commercial Court released the eleventh edition of the Commercial Court Guide, the first update since 2017. The changes are extensive. The update reflects the trends within the judicial system to encourage more efficient, focussed and collaborative litigation and procedural simplicity, and incorporates recent changes around the approach to disclosure and witness evidence, and the technical developments brought about by the pandemic.
These changes, in particular those which we discuss below, will continue to ensure that the Courts of England & Wales continue to be recognised as a world-leading, attractive, and cost-effective forum to resolve legal disputes.
Cost Effective Disclosure
The Commercial Court has since 1 January 2019 operated the “Disclosure Pilot Scheme” (DPS). The scheme aims to make disclosure more proportionate and tailored to the circumstances of each case. The updated Guide builds upon the aims of the DPS and makes clear the Commercial Court’s seriousness in enforcing these principles.
Taking a key example - practitioners will be aware that there has been increasing concern regarding the preparation of the Disclosure Review Document (DRD). The intention behind the DRD is to facilitate disclosure discussions, help the parties agree a cost effective approach and assist with case management. Increasingly, however, the DRD has become a fertile ground for satellite disputes regarding the scope of disclosure, causing further costs to be incurred and court time to be used whilst those issues are resolved; for example, in McParland v Whitehead Vos LJ emphasised that the DPS should not be used as an opportunity for litigation advantage and if that happened, that parties responsible would face serious adverse costs consequences.
The updated Guide reemphasises the importance of keeping the DRD simple and concise, and encourages parties to avoid the proliferation of different models for extended disclosure. Lists of Issues for Disclosure, where required, should be short and easy to understand. Parties are obliged to cooperate; they should not allow the settling of the DRD to become contentious, time-consuming or expensive, and are obliged to give consideration in every case to whether it may properly be treated as a Less Complex Claim for the purpose of disclosure (which requires a more abbreviated, and therefore theoretically cheaper disclosure process). The Guide now expressly provides that the Court may disallow the costs of unnecessarily lengthy or complex DRDs.
Cost Effective Technology
The new edition of the Commercial Court Guide reflects a variety of changes to practice – some, like the increasing use of technology, brought about or at least expedited by the COVID-19 pandemic.
Electronic bundles will now be the default position for cases in the Commercial Court. The Guide encourages parties to minimise the use of paper; there will be no hard copy trial bundle unless specifically requested. No unnecessary documents should be included or else cost penalties may follow (although it will be interesting to see how the Court will police this with the use of electronic bundles where it is arguably easier to “hide away” documents).
The Guide also recognises that the Court may grant permission for evidence to be given by remote means (including by video link), with remote evidence to always be considered for a witness who will have to travel a substantial distance and whose evidence is expected to last no more than half a day.
Parties are now also strongly encouraged to consider the wider use of information technology, such as electronic presentation evidence (EPE), and if they do not, to explain why. For the uninitiated, EPE is an alternative to paper-based hearings. Instead of relying upon paper bundles, parties can now instruct third party providers to present their documents virtually. As document presentation via EPE is, in theory, faster than a paper-based hearing, the parties should make savings in both time and cost. EPE also allows for documents to be present side-by-side for comparison and features highlighting and zooming functionality.
Cost Effective Advocacy
The Guide encourages the use of junior advocates wherever possible; parties are urged to consider whether attendance by more senior advocates in the case is reasonably required. Court users may benefit, as hearings will be able to be listed more quickly as juniors typically have better availability than their more senior counterparts. Costs may be reduced. There have also been long-standing concerns at the Bar and Bench regarding the ability to junior advocates to gain experience; it is undoubtedly hoped this will help allay those concerns.
Other Changes to the Guide
Other changes worth noting include:
- The Guide encourages parties to keep the question of what evidence (both documentary and witness) is actually needed to resolve the issues under active review from an early stage;
- The Guide sets out maximum hearing times for different types of applications. Parties will now require permission if they wish to exceed those estimates; and
- As well as re-emphasising the range of options which the Court will regularly consider for foreign law evidence, the Guide specifically references the recent landmark case of FS Cairo (Nile Plaza) LLC v Lady Brownlie [2021] UKSC 45, which saw the Supreme Court, amongst other things, reassert that if a party wishes to assert that foreign law is different to English law, it is incumbent upon it to show why this might be so.
Comment
It is clear from the latest edition of the Guide that the Commercial Court wants parties to approach the litigation process more thoughtfully and collaboratively. This renewed focus is reflected across the judicial system, building on the DPS, changes to the preparation of witness evidence, and the Civil Justice Committee’s review of the pre-action protocols. Further changes will no doubt follow as the Courts continue to encourage user-friendly, and streamlined litigation.
