The 11th edition of the Commercial Court Guide (The Guide) was published on February 3, 2022. This is the first amendment since the 10th edition was released in 2017, bringing various changes to practice in the Commercial Court.
The new edition reflects judicial system trends toward more efficient, focused, and collaborative litigation and procedural simplification. It incorporates recent changes regarding disclosure and witness evidence and technical developments in the aftermath of the pandemic.
These changes will ensure that the Courts of England and Wales remain recognised as a world-leading, appealing, and cost-effective forum for resolving legal disputes.
The New Commercial Court Guide
The new version of the Commercial Court Guide reflects several changes in practice, some of which have been brought from the COVID-19 pandemic.
Some of these changes reflect significant changes in;
- The implementation of the Shorter Trials and Flexible Trials schemes (Practice Direction 57 AB)
- The Disclosure Pilot (Practice Direction 51 U)
- The new regime for trial Witness Statements at (Practice Direction 57 AC)
- The change towards remote hearings and paperless trials
There are also updates to the process for listing trials, the options that the Court will consider for foreign law evidence regularly, and the default maximum hearing times for different applications. Other points include:
- Encouragement of the use of junior advocates wherever possible; parties are urged to consider whether attendance by more senior advocates in the case is reasonably required.
- A process for summary determination of jurisdiction challenges in arbitration and,
- Encourages parties to keep the question of what evidence (both witness and documentary) is needed to resolve the issues under active review from an early stage.
More broadly, the new Guide represents a significant shift in how judges want Commercial Court litigation to be conducted. That shift is intended to advance the goals of the Woolf Reforms, which are enclosed in the Overriding Objective in CPR Part 1.
Dealing with cases at a reasonable cost involves managing cases in ways that save expense, comparable to their value, importance, and complexity. It ensures that they are dealt with relatively and allows them a fair share of the Court’s available resources.
Introduction and key themes
We summarise some key themes from the new Guide below, focusing on issues relevant to commercial litigators. The Guide may affect specialist lists (such as Competition, Trusts, and Probate) but are outside the scope of this article.
- Case management
- Disclosure
- Junior advocacy
- Applications
- Arbitration appeals
- Expert evidence as to foreign law
- Witness statements
- Trials, and
- Negotiated dispute resolution
Case Management Conference
The following three themes in the Guide reinforce the “new approach” to case management:
- Judicial “activism” – Parties should consider whether it would be more appropriate to begin proceedings in one of those Courts, and any Judge of the Commercial Court may, on their own initiative, order the case to be transferred there. (see B13.5 and further details in Appendix 14).
- The more efficient use of judicial resources – there is a “block” estimate, inclusive of pre-reading, and time is likely to be required for the judge to read both parties’ written closing argument before closing. (see F.5).
- The need to consider from an early stage and throughout proceedings what steps will be sufficient for a fair trial of the case –The key changes here are: the essential elements of a cause of action, should be pleaded, and the evidence and background information should not be pleaded (see C1.1).
Disclosure
The Guide emphasises cooperation between the parties and avoiding disclosure from becoming an issue that wastes court time and raises costs.
Application of the Disclosure Pilot (PD 51U)
- The goal of disclosure is to help in the appropriate disposal and trial of a claim. The overriding objective must be considered as the need to limit the disclosure to what is required to deal with the case fairly. (see E1.1)
- The Disclosure Review Document DRD must be simple and concise (the List of Issues for Disclosure). The Court may disallow the costs of excessively long and complex DRDs. (see E2.2)
- Parties should comply with its provisions, including the disclosure deadlines, before the CMC. (see E2.1)
- Parties are obliged to cooperate; they should not allow settling the Disclosure Review Document to become contentious, time-consuming, or expensive. (see E2.6)
- Usually, with the assistance of the parties, the Court will expect to approve the Disclosure Review Document in no more than 1 hour within the first Case Management Conference. (see E2.7)
Junior advocacy
The new Guide also emphasises the role of junior advocates and encourages junior barristers to participate in led cases as advocates, particularly in case management and costs hearings.
Courts want to see more advocacy from junior lawyers
- The experience of the Court is that on many case management issues, junior advocates within a team may be well-placed to assist the Court. Parties should consider in every case (a) whether attendance by the more (or most) senior advocates instructed in the case is reasonably required and (b) whether, even where that is the position, at least some of the matters arising may appropriately be dealt with by the more (or most) junior advocates. (see D7.1)
- Disclosure issues, where they arise at a Case Management Conference, are an excellent example of issues on which it may be appropriate and helpful for the argument to be prepared and undertaken by a junior advocate. (see E1.4)
There have also been long-standing concerns at the Bar and Bench about junior advocates’ ability to gain experience; it is undoubtedly hoped that this will help alleviate those concerns.
Applications
The Guide specifies maximum hearing times for various types of applications. Parties will now need permission if they want to go above those estimates.
- The time required for a hearing should be estimated on the basis that the judge will aim to give immediate judgment at the hearing on any application listed for a hearing of no more than half a day.(see F5.4, F5.4)
- Witness statements should not be used to argue the application. They should be confined to (a) matters of fact to be relied on in support of, or in resisting, the application and (b) satisfying any specific requirements under a rule or Practice Direction stipulating that some issues have to be stated in a witness statement. (see F8.2)
- The Guide also states a party wishes to rely on expert evidence at a hearing other than a trial, the permission of the Court should still be obtained to ensure that expert evidence is only placed before the Court when it is reasonably required to resolve the application. (see F8.6)
Arbitration appeals
There are also updates to Section O of the Guide dealing with arbitration claims.
- An arbitration claim challenging an award on the ground of irregularity under section 68 of the 1996 Act is appropriate only in cases with severe grounds for thinking. (see O8.3)
- An arbitration claim challenging an award as to the arbitral tribunal’s substantive jurisdiction or challenging an award on the merits on the ground that the tribunal did not have substantive jurisdiction under section 67 of the 1996 Act (see O8.4)
- The applicant can set aside the order in the Court and seek directions for the hearing of the application. If the application is made and dismissed after a hearing, the Court may consider whether it is appropriate to award costs on an indemnity basis. (see O8.7)
Expert evidence as to foreign Law
It should be noted that the law has not changed: the content of foreign law continues to be a matter of fact that must be proven. However, how it is proven is a procedural matter that must be approached with new perspectives. It will not always be necessary to exchange formal expert reports.
New options for proving foreign law at trial
The new provisions in H3 of the Guide reinforce two themes:
- The Court may be prepared to take judicial notice or accept the agreement of the parties and have the advocates make submissions at trial (see H3.3 (d))
- Instructing a separate foreign law expert to provide expert evidence will not always be necessary. (see H3.5)
- Where there is a Pre-Trial Review, the parties should consider and be ready to discuss with the Court whether such evidence is still reasonably required. (see H3.7)
Witness statements
The Guide has been revised to refer to the Practice Direction on Trial Witness Statements PD 57AC. That PD must now be consulted to ensure that the contents of trial witness statements are compliant.
- The Court may grant permission for witness testimony to be given remotely, such as via video link (including the use of internet video conferencing) or telephone. This should always be considered for a witness who must travel a significant distance, including from abroad, and whose testimony is expected to last no more than half a day. (see H4.1)
Trials
The important changes to the new Guide for trials can be summarised as follows:
Changes to the scope of skeleton arguments
- There is encouragement in the new Guide to make this as comprehensive as possible and an optimistic statement agreeing that the document should not become a significant additional burden or involve a debate about whether the content should be treated as agreed. ( see J6.5)
- The practice of listing trials to begin on a specific date and allocating pre-reading time before that date will generally be dismissed so that if there is to be any reading time before the first sitting day of the trial, it will begin on the first date of the trial listing and not before. ( see J3.3)
- The deadline for skeletons is now 12 pm rather than 1 pm (J6.2)
Information technology at trial, including paperless trials
- Parties and their legal representatives should seek to minimise paper use at trial. No hard copy trial bundle, only electronic trial bundles, should be lodged for use by the Court unless specifically requested. (see J2.1)
Negotiated Dispute Resolution
Negotiated Dispute Resolution (NDR) has replaced Alternative Dispute Resolution (ADR) (see Section G and Appendix 3). The change is intended to reflect that NDR is no longer to be viewed as a separate, discrete exercise but rather to coexist with litigation throughout a case.
The Guide does not say whether or how NDR will differ from the ADR, but parties can expect more communication with the Court, presumably at the CMC, about their willingness to settle and the best way to pursue settlement.
Law Notion’s Key Takeaway and Comment
The Guide’s latest edition clarifies that the Commercial Court wishes parties to approach the litigation process more thoughtfully and collaboratively. This renewed focus is reflected throughout the judicial system, building on the DPS, changes to witness evidence preparation and the Civil Justice Committee’s review of pre-action protocols. More changes are undoubtedly on the way as the courts continue encouraging user-friendly and streamlined litigation.
A thorough understanding of the regulatory landscape is crucial as they seek to balance the needs of businesses. By gaining insights into the regulatory landscape, policymakers can better understand the regulations they are responsible for enforcing and how they impact different industries., while lawyers can help businesses navigate through the complex regulatory system better.
Combining this knowledge with their field expertise allows lawyers to better represent clients’ needs and protect their rights. Law Notion takes all the world’s regulatory content and cases in the court, standardises it and maps it to specific business profiles and compliance frameworks. You can see all of the regulations and court cases you should be concerned about and what regulatory changes and new court cases are on the horizon in one place.
If you are a lawyer looking to improve your understanding of the regulatory landscape and court cases, consider consulting with industry experts like Law Notion. Contact us today.