Five years is a long time in the law. The 2017 Commercial Court Guide did not have to grapple with remote hearings or electronic bundles and the disclosure pilot scheme was not yet thought of. Fast forward to today and we are all working in ways unimaginable when the previous guide was published. Courts and court users have embraced electronic working in a remarkable way.
The new guide reflects this novel way of working post-Covid, and also makes other important updates to practice in the Commercial Court. Highlighted below are some of the key changes in the guide, of which all practitioners should be aware. There are other, sometimes subtle, changes which merit considering the guide carefully at the appropriate stages.
Statements of case: statements of case no longer than 40 pages may now be served without the court’s permission, though an expectation remains that they should not generally exceed 25 pages. There is no longer a requirement to attach the draft statement of case to the application unless there is a good reason to do so.
Disclosure: disclosure has obviously been a major focus for all courts in recent years. The guide stresses on a number of occasions that disclosure is intended to ensure that a case can be dealt with justly and, by implication, not a device to be exploited for tactical advantage. It remains to be seen whether this will work in practice but the guide encourages the parties to keep the disclosure review document (DRD) ‘simple and concise’. It goes so far as to indicate that the court may disallow the costs of unnecessarily lengthy or complex DRDs, and that the legal representative with direct responsibility for preparing the DRD should attend the case management conference (CMC). Rather optimistically, the guide also highlights the need for the parties to cooperate and that the settling of the DRD should not become contentious, time-consuming or expensive.
Case management conferences: there is now a requirement on the claimant to file, by 4pm on the working day before a CMC, an updated draft order setting out all directions which are agreed (subject to the approval of the court) and those which are not agreed, including rival proposed wording (with colour coding or equivalent to distinguish between the parties’ positions). In complex multi-party cases, this is a very useful document but not one which can be left to prepare at the last minute.
Finally, an important topic for solicitors to remember for the future of the bar: instructing junior advocates to undertake at least some of the advocacy at CMCs is specifically encouraged by the guide.
Narrative of uncontentious facts: the guide encourages parties to agree and file a detailed narrative of uncontentious facts in advance of the pre-trial review. This is no doubt tied to the changes to the rules regarding witness statements for trial introduced in April 2020 which (are designed to) cut down on commentary on the documents and a general narrative. It is likely to be a very helpful document for the court, and enables (as the guide envisages) the skeleton arguments for trial to focus on contentious matters of fact, the law and presentation of the case.
Listing of trials: any pre-reading which is required for trials must now be done from the first listed day of the trial: pre-reading time will not be made available to judges. This should be taken into account when setting a trial timetable, and it may well be helpful to open the trial, followed by a period of reading for the judge before commencing the evidence.
Remote evidence: there is now a requirement on the court to consider granting permission for witnesses to give evidence remotely (that is, by videolink or telephone) where that witness would have to travel a substantial distance, including from abroad, and the evidence is expected to last less than half a day. Although exceptions are possible (for example, where the witness evidence is critical to the case and/or where there is likely to be a substantial attack on the credibility of a witness), in reality almost all such evidence will be given remotely in the future.
Evidence (factual): the guide reminds the parties to keep under ‘active’ review the question of what evidence is actually required to resolve the issues in dispute, rather than simply progressing from one stage of litigation to the next without question. In keeping with the amendments to the rules regarding witness statements for trial, there is an attempt in the guide to restrict what is included in evidence for interim applications. It is made clear that witness statements for interim applications should not be used to argue the application itself and should be limited to: (i) facts relied on in relation to the application; and (ii) satisfying any particular rules or practice directions.
Evidence (expert evidence): the guide highlights the (under-used) flexibility available to parties to resolve questions of foreign law, as set out in Brownlie v FS Cairo (Nile Plaza) LLC [2021] UKSC 45. In particular, it sets out ways in which foreign law might be dealt with, including the possibility of not requiring experts to give oral evidence at trial even if their evidence is not agreed. More radical is the prospect of the court taking judicial notice, or accepting the agreement of the parties, as to the nature and importance of foreign law with advocates making submissions on the basis of those sources, dispensing with the need for expert evidence on foreign law altogether.
For expert evidence used in interim applications, a party must raise the issue with the court as soon as possible after the application has been issued and served, and must not be left to the hearing of the application. For issues of foreign law on interim applications, the guide anticipates that it will frequently be satisfactory for such evidence to be given by way of a witness statement reporting the content of an opinion (for example, by way of a letter), rather than in the form of a formal report, and by a foreign lawyer acting for the party rather than an independent expert.
Jason Woodland is a partner at Peters & Peters and a committee member of the London Solicitors Litigation Association (with thanks to Caroline Timoney for her assistance)
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