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Practice Direction 57AB – Shorter and Flexible Trials Schemes

This Practice Direction supplements CPR Part 57A and provides for two schemes, the Shorter Trials Scheme and the Flexible Trials Schemes. Both schemes are operational from 01.10.18 and operate in all the Business and Property Courts, including those in the Rolls Building and those situated outside London. The schemes apply to claims issued on or after 01.10.15.

The Schemes were introduced to make business litigation cheaper and simpler. The Pilot Schemes commenced in October 2015 and ended on 30 September 2018.

The length of trials in the Shorter Trials Scheme will be no longer than 4 days including reading time, and a case will not be suitable for the Scheme if it appears that it will require a longer trial. The Shorter Trials Scheme will not normally be suitable for cases including an allegation of fraud or dishonesty, and cases which are likely to require extensive disclosure and /or reliance upon extensive witness or expert evidence.

In relation to Costs, the Practice Direction provides that unless parties agree otherwise, CPR3.12 will not apply to cases in the Shorter Trials Scheme. If, at the outset of proceedings the parties agree that costs management should apply, they should seek an order to that effect at the CMC and apply for directions as to when budgets should be exchanged, discussed and submitted for the Court’s approval. (2.56)

The Court will endeavour to hand down judgment within six weeks of the trial or (if later) final written submissions.

2.57 – Within 21 days of the conclusion of the trial, or within such other period as may be ordered by the court, the parties shall each file and simultaneously exchange schedules of their costs incurred in the proceedings

2.58 – such schedules should contain sufficient detail of the costs incurred in relation to each applicable phase identified by Precedent H to the Costs Budgeting regime to enable the trial judge to be in a position to make a summary assessment thereof following judgment

2.59 – save in exceptional circumstances –

(a) the court will make a summary assessment of the costs of the party in whose favour any order for costs is made

(b) rules 44.2(8), 44.7(1)(b) and Part 47 do not apply

Parties must therefore exchange costs schedules within 21 days of trial (unless ordered otherwise) following which summary assessment will take place. It will therefore be necessary to ensure that the time for filing and exchanging costs schedules is adhered to. PIC can assist with the preparation of costs schedules.

This can be further considered in light of the new voluntary pilot scheme, which commenced from 1 April 2019 and saw the introduction of electronic time recording in cases where costs are to be summarily assessed.

If it is a budgeted case, then the new N260 pilot scheme provides a clue as to how a phased N260 may look and work. The “sufficient details” point at 2.58 is unclear, but a Precedent Q may be required in addition to the N260. It should be noted that even for non-budgeted cases, depending on the outcome of the voluntary N260 pilot scheme, that practitioners will have to give information as to phases in all cases. This raises the question as to why this would be necessary in this scheme where there is no budget (given that budgeting under the Shorter Trials Scheme is the exception not the rule.) For now though the electronic N260 is voluntary but it none-the-less remains something for practitioners involved in the Shorter and Flexible Trial Schemes to be aware of as it is likely that the voluntary pilot will become mandatory in future. Whilst Trials may get shorter, it appears that costs may go in the other direction.

For further information in relation to the N260 pilot scheme, please see – https://www.pic.legal/electronic-coding-is-coming-to-n260s/

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Allison Green – Costs Consultant – Partners in Costs

04.04.19