First reported decision transferring case into Shorter Trials Scheme

A recent High Court decision has confirmed the court's jurisdiction to transfer cases into the Shorter Trials Scheme, a streamlined procedure which aims to progress a case through to judgment within about a year of issuing proceedings: Family Mosaic Home Ownership Ltd v Peer Real Estate Ltd [2016] EWHC 257 (Ch).

A two-year pilot of the Shorter Trials Scheme has been running for claims commenced since 1 October 2015 in the Rolls Building courts (including the Commercial Court, the Chancery Division and the Technology and Construction Court). It is one of two schemes, together with the Flexible Trials Scheme, aimed at providing quicker, more cost-effective justice. For more information on the schemes see this post.

It seems this will be only the second case to proceed in the scheme, and the first in the Chancery Division. We understand the other case is proceeding in the Commercial Court. In the present case the parties agreed that the case should be transferred, and so the decision does not shed light on how the court will approach matters where one party objects to use of the scheme. Nonetheless the judgment contains some interesting comments on the scheme and its aims. 

A change in litigation culture

Mr Justice Birss noted in his judgment that the Shorter Trials Scheme is intended to involve tight control of the litigation process by the court, in order to resolve the dispute on a commercial timescale. The case will be managed by a docketed judge with a trial date fixed for no more than eight months after the case management conference and with judgment six weeks after that. He went on to say:

"The initiative as a whole also seeks to foster a change in litigation culture: a recognition that comprehensive disclosure and a full, oral trial is often unnecessary for justice to be achieved. That in turn should improve access to justice by producing significant savings in the time and cost of litigation."

Jurisdiction to transfer cases in to the scheme

As noted in the judgment, and rather surprisingly, the rules governing the scheme (at Practice Direction 51N) do not state in terms that the court can transfer an existing case into the scheme. However, Birss J confirmed that the court does have power to transfer cases in and out of the scheme.

That power is implicit in PD51N, and in any event the court has power under CPR 3.1(2)(m) to take any step or make any order for the purpose of managing the case and furthering the overriding objective. The overriding objective includes, as far as practicable: saving expense, dealing with cases in ways which are proportionate and allotting to a case an appropriate share of the court's resources. Since having an appropriate case conducted in the Shorter Trials Scheme is, the judge noted, likely to reduce cost, deal with the case in a proportionate way, and free up the court's resources for other litigants, CPR 3.1(2)(m) provides an express basis on which the court can make the necessary order.

Cases appropriate for the scheme

PD51N provides (at paragraph 2.2) that the scheme is for all cases in the Admiralty and Commercial Court, the London Mercantile Court, the Technology and Construction Court, and the Patents Court "and for business cases in the Chancery Division". As Birss J confirmed, the reference to "business cases" in the Chancery Division is not intended to reduce the ambit of the scheme in that court as compared to the other courts in which the scheme is running (where the actions are all business cases of one sort or another). The contrast, he said, is between business cases in the widest sense and purely private, non-commercial matters such as family property and family trusts which are also dealt with in the Chancery Division. 

The present claim is for specific performance of a contract for the sale of a London property for £2.75 million which the claimant intended to use as part of its undertaking as a provider of social housing. Birss J said this is obviously a commercial property dispute, and so falls well within the ambit of the scheme. It is irrelevant that the claimant is a registered provider of social housing.

Birss J also went through the list of cases the scheme will not normally be suitable for (at paragraph 2.3 of PD51N), namely:

• (a) cases including an allegation of fraud or dishonesty;
• (b) cases which are likely to require extensive disclosure and/or reliance upon extensive witness or expert evidence;
• (c) cases involving multiple issues and multiple parties, save for Part 20 counterclaims for revocation of an intellectual property right;
• (d) cases in the Intellectual Property Enterprise Court;
• (e) public procurement cases.

Sub-paragraphs (d) and (e) clearly did not apply. In relation to the others:

• In relation to (a), the parties had confirmed there was no allegation of fraud or dishonesty. The case involved an estoppel argument, with a plea of unconscionability on the part of the defendant, but the judge said that was no reason not to deal with the case in the scheme. 
• In relation to (b), the parties had confirmed there would be no need for extensive disclosure or extensive witness or expert evidence. The case involved a relatively self-contained question of whether the defendant agreed to waive a condition precedent or was estopped. Some disclosure and oral evidence might well be needed but that could be addressed at the case management conference.
• In relation to (c), there was not the sort of multiplicity of issues or parties that would make the case unsuitable for the scheme. There was a counterclaim but it was a simple claim for a declaration arising from the same points already in issue.

Birss J held that it was an appropriate case for transfer. He commented that in future in simple cases they may well be no need to give a reasoned judgment every time a case is transferred into the scheme, but it was appropriate to do so in this case given the novelty of the issues arising.