The Commercial Court Long Trials Recommendations inevitably took centre stage in the session entitled Reforming case management at the Legal Week Litigation Forum last week.
I reached it in time to hear Ali Malek QC making it clear at the end of his speech that some of his cases simply would not fit into what he saw as an idealised time-frame. He was talking about the actual trial, and about cases whose factual or technical complexity could not sensibly be conveyed with a short statement of case and a brief opening.
The main act was Anthony Boswood QC, whose starting proposition was that every procedural change in his time had led to an increase in costs. The Commercial Court Recommendations provided no exception.
As background for those new to this, the Commercial Court Long Trials Recommendations emerged from a Working Party chaired by Sir Richard Aikens, now Lord Justice Aikens, which reported in December 2007. Its context was the BCCI and Equitable cases which had taken so long and cost so much that they gave the whole UK litigation system a name which put domestic parties off litigating at all and threatened to drive foreign-derived litigation to more efficient regimes. The Recommendations expressly required no primary legislation or rule changes, but set out some principles and a timetable which, with rigorous case management from judges, were aimed at reducing the time and costs, particularly for long trials.
The changes were open to the allegation (as their proponents acknowledged) that their effect would be to front-load costs which might otherwise not be incurred at all – a charge made against much of the CPR as a whole. The Recommendations are presently undergoing a trial period beginning last February and due to end in November. At a meeting in February, which I attended (see Commercial Court Judges set out their case management intentions), Mr Justice Aikens (as he then was), Mrs Justice Gloster and Mr Justice Andrew Smith made it clear that they were keen to get feed-back and comments during the trial period and not just at the end. Anthony Boswood was more than happy to give his comments.
He said that the idea of increasing pre-trial interlocutory activity was wrong. Judges cannot get an in-depth understanding with the time and the information which was available at that stage. His particular ire was turned on the List of Issues and witness statements.
The List of Issues is described in the Recommendations as the “keystone” of the case management regime. Paragraph 51 says:
The List of Issues will be based on the pleadings of the parties, but in future it should become, effectively, a Court Document. It should, once settled, be the basis on which decisions are made about the breadth and depth of disclosure, provision of witness statements, what experts will be permitted and, ultimately, the shape of any trial.
Boswood’s view was that attempts to arrive at such a list will nearly always be contentious and expensive. Parties would be at odds over the issues and their definition and particularly as to the obligation to set out issues and sub-issues. He gave us an extended example of a type of case in which the range of issues and sub-issues would defy the easy classification, at an early stage at any rate, which the Recommendations envisaged.
Attenuated pleadings and unparticularised issues would not have the effect hoped for in the Recommendations – often the reverse. The sample issues list given in the Recommendations was of little help.
We were given no positive suggestions as to what, if anything, would be a better way of trying to define the scope of what the parties were arguing about at an early stage, nor would one reasonably expect one. Despite his opening remarks to the effect that all change has been for the worse, I doubt that Anthony Boswood would quarrel with the idea that some measure of court control is needed and that the present system is not working to that end. Cases vary in complexity and some – perhaps many – cannot be fitted into the neat framework envisaged in the example. It seems worth an attempt to provide a structure in which the exercise can be attempted, and whose effect can be judged from the experience.
Anthony Boswood was on stronger ground as to witness statements. These, of course (as he pointed out), are not an invention of the Commercial Court Recommendations but are required by the CPR [Part 32.4]. The theory is superficially attractive, both in terms of early assessment of the strength of the case on each side, and for abbreviating hearings. The usual argument against them (here and in Australia) is the enormous pre-trial burden which they impose in anticipation of a trial which, statistically-speaking, will probably never take place. Their advocates would say, in turn, that witness statements contribute to settlement before trial.
Anthony Boswood put explanatory flesh on the simple assertion that witness statements increase time and costs rather than the opposite effect which is intended. The statement will, he said, assert what the lawyer has persuaded the witness is true, and cross-examination is needed to unpick the real truth. A witness giving oral evidence–in-chief is often unable to articulate the preferred “truth” and reveals the holes and flaws by his demeanour as much as by what he actually says. Cross-examination then becomes unnecessary. The old system, Boswood concluded, was cheaper.
I suspect the weight of opinion would be behind him on this as to witness statements, although judges may have different views from those of advocates, who prefer the greater control on the day which oral evidence provides as opposed to the frozen assertions of the witness statements. For myself, I would rather see pre-trial time and effort put into narrowing the scope of both the issues and the documentary evidence and less to pre-polishing the oral evidence. Let that await the refining fire of trial, and focus before trial on trimming down the firewood to the pieces which will give off the most light.
A questioner from the floor asked if the judges support the Recommendations. Would they enforce them? Would BCCI have gone differently under this regime? Anthony Boswood did not think that many Commercial Court judges did support the Recommendations and thought it unlikely that they would be enforced. As to BCCI, the failures in that case did not justify the changes done in its name.
The CPR, he said, was a “ten-year experiment which has gone wrong” but we are supposed to say that “the Emperor has lovely new clothes”. The whole philosophy needs review, he said. The courts have management powers, and do not need the big changes which the Commercial Court Recommendations seek to impose. The old rules were better for £1 million plus claims, and the lack of litigation in the last decade can be blamed on the new rules.
There will, he said, “be another symposium” at the end of the trial period. Did I imagine it, or was this said in the same tone as the rest of us might use to refer to a New Labour focus group?
Not much out of these arguments is capable of objective measurement. Every case is different; the quality of both advocates and judges varies, and what is right for Anthony Boswood QC at the top of the tree may be inadequate for others.
I am merely a reporter in this context, and my view is neither here nor there compared with that of those who practice daily in the Commercial Court or sit as judges. The outcome of the next Symposium will at least give us a feel for the extent to which views are polarised and whether there is any common ground to emerge from distilling the outcomes of varied cases.