In the latest of our alternative dispute resolution series for Construction Law, we highlight when it is appropriate to use the Shorter Trials Scheme and its sister process, the Flexible Trials Scheme, which are now entrenched as formal court processes in the Civil Procedure Rules.

The Shorter Trials Scheme (STS) and the Flexible Trials Scheme (FTS) introduced a simplified court procedure for resolving disputes that require little factual and/or expert evidence and a trial of no more than four days (including reading time). Cases involving multiple issues/parties, public procurement issues or fraud/dishonesty allegations are not suitable for the STS.

Early judicial support for the STS was apparent in National Bank of Abu Dhabi PJSC v. BP Oil International Ltd [2016] EWHC 2892 (Comm) where, with notably "co-operative spirit", the parties and their lawyers conducted a US$64 million claim under the STS in a one-day trial with limited disclosure, no witness statements and no oral evidence. Not all cases will be as clearly cut out for the STS as Bank of Abu Dhabi so the High Court’s review of the applicable principles in Excel-Eucan Ltd v. Source Vagabond System Ltd [2018] EWHC 3864 (Ch) provides useful guidance on the court’s approach.

In Excel-Eucan, the parties’ dispute had been allocated to the STS but the defendant argued that the procedure was not suitable based on the complexity of the case, the need for disclosure and the likely length of trial. In assessing the case’s suitability for the STS, the judge noted that the length of the statements of case and amended defence and counterclaim suggested complexity but the real nub of the STS rested on:

"… whether the case can properly be contained within the trial estimate of no more than four days and whether it truly requires extensive disclosure and/or reliance upon extensive witness or expert evidence."

The judge remarked that the disclosure pilot (which started in January 2019) and the STS were similarly aimed at avoiding commercial disputes becoming "bogged down and excessively expensive because of disclosure". The disclosure pilot achieves this aim by providing a range of disclosure options. The STS, on the other hand, is not subject to key disclosure duties under CPR Pt 31. Instead, parties must serve a bundle of core documents with their pleadings and make specific requests for any additional disclosure. The judge thought it would be a mistake to become too bogged down in the decisions of other judges on different facts, preferring to focus on the issues at hand.

He concluded that neither the over-lengthy pleadings, nor the potential disclosure, nor the need for five witnesses amounted to a degree of complexity which would make the case unsuitable for the STS. The critical factor for deciding suitability for the STS was whether the case could be heard within four days. Although cautious because he knew he was binding the ultimate trial judge to that timeframe, he concluded on the facts that four days was enough. (He did, however, note that the case could be taken out of the STS in future, if necessary.)

Comment

It is important to recognise the judge’s rather holistic approach. His decision was underpinned by both the overriding objective’s requirement for proportionality and the similar ethos that lies behind both the STS and the new disclosure pilot of reducing costly, time-consuming standard disclosure. Against that backdrop, the pared down approach of the STS was the most appropriate here. A reasonably high proportion of infrastructure cases involve multiple parties, multiple issues and issues which require extensive evidence – which would rule out the STS as a dispute resolution tool.

However, Bank of Abu Dhabi and Excel-Eucan remind us that the culture of litigation and the approach to disclosure is changing. High value claims and even complex facts might not necessarily require a lengthy trial. Sitting between adjudication and full-blown TCC litigation, the STS as an ADR option is worth consideration.

This article was first published on 3 June 2019 by Construction Law.