New edition of Commercial Court Guide includes important updates

The 11th edition of the Commercial Court Guide was published last week, reflecting a variety of changes to court practice.

The new edition includes amendments to reflect new ways of working prompted, in part, by the Covid-19 pandemic. So, for example, parties and their legal representatives are encouraged to minimise the use of paper. Bundles for hearings and trials are to be filed only electronically, unless a hard copy bundle is specifically requested. There is also greater encouragement to the practice of witness evidence being given remotely. The new guide says this should always be "at least considered" where a witness would have to travel a substantial distance, including from abroad, and their evidence is expected to last no more than half a day.

The amendments to the guide reflect procedural reforms implemented in recent years, such as the new regime for trial witness statements, at Practice Direction (PD) 57AC, and the disclosure pilot, at PD 51U. The fact that the disclosure chapter now assumes the application of the pilot, with the non-pilot disclosure provisions at CPR 31 relegated to an Appendix, would suggest that the Commercial Court expects the pilot to be incorporated into the rules in some form when its (extended) four-year term finishes at the end of this year. The guide also emphasises that, although PD 57AC does not apply to witness statements in support of interim applications, as opposed to trial witness statements, such statements must still be confined to matters of fact rather than argument - which should be left to be outlined in skeleton arguments and developed orally at the hearing.

There are new detailed provisions regarding the court's approach to expert evidence of foreign law, reflecting the fact that such evidence features in a "significant proportion" of Commercial Court trials. The procedures for obtaining permission to use expert evidence in interim applications are also clarified.

More generally, the new guide contains various provisions encouraging the parties to identify the significant matters in dispute and the evidence needed to resolve them, and to consider carefully from an early stage, and throughout, what reasonable steps will be sufficient for a fair trial of the case. The guide also encourages the use of agreed detailed narratives of uncontentious matters of fact for trial, to assist the court and allow skeleton arguments to focus on the main issues.

The new edition takes a more modern approach in using gender-neutral language throughout and referring to “advocates” without distinguishing between barristers and solicitor advocates.

It also discards the term "ADR" (or alternative dispute resolution) in favour of "NDR" (or negotiated dispute resolution) to reflect the view of the Master of the Rolls that there is nothing "alternative" about ADR. It will be interesting to see whether that terminology catches on more widely.

There are significant revisions to the section of the guide dealing with arbitration claims, to deter unmeritorious challenges to arbitral awards and confirm the court’s powers to act to dismiss such claims and sanction parties who bring them. For more information on those aspects see this post on our Arbitration Notes blog.

Projects are also currently underway to revise and update the Chancery Guide and the Technology and Construction Court Guide. It is anticipated that new editions of both will be published later this year.