Court news

There have been several developments since our April update, including further proposed increases in court fees, the introduction of CE-Filing in the TCC, and shorter and more flexible trials. There is also the new Financial List, but we deal with that in a separate article

Proposals for further increases to court fees

Further to the substantial court fee increases in March 2015 (for more detail see our April 2015 update, July saw the announcement that the Ministry of Justice (MoJ) is proposing to increase the maximum fee for money claims (calculated at 5 per cent of the claim value) from £10,000 to at least £20,000 for claims of £200,000 or more.

As expected, the response has been loud. There are concerns that further increases will affect London's popularity as a disputes forum, but the biggest concern is the impact on smaller claims (£200,000 to £400,000). It is these claims, rather than the multi-million pound ones brought by wealthy individuals and large corporations, that will bear the brunt of the proposals. For smaller claims, the increase may act as a deterrent and will certainly encourage greater use of ADR before such claims are issued.

The proposals were included in the MoJ's response to its consultation on enhanced fees for possession claims and general applications in civil proceedings, which closed on 27 February 2015. In addition to the proposed increases, the response confirms that the Government will:

• increase the fees for issuing a possession claim in the County Court by £75, from £280 to £355; and
• increase the fees for applications in civil proceedings from £50 to £100 where consented to, and from £155 to £255 where contested.

The MoJ consultation on the proposed fee increases closed on 15 September. A copy is available here.

Electronic filing pilot in the Technology and Construction Court (TCC)

Following on from our October 2014 update and the introduction of the electronic court file (CE-File) in the Chancery Division, the TCC began its implementation at the end of last year. However, at that time, parties were only able to file documents electronically and not issue them. A pilot has now begun in the TCC which enables the issue of documents and the payment of court fees online (by credit/debit card or HMCTS payment on account), as well as the filing of court documents.

The procedure to be followed when using the pilot is prescribed in a new practice direction, PD 51J, which came into force on 6 April 2015 as part of the 79th CPR update practice direction amendments. HMCTS has also published guidance to help subscribers taking part in the pilot.

The potential benefits of electronic filing include the ability to file documents at court 24 hours a day, seven days a week, and receipt of an automatic acknowledgment of the document's submission. However, anecdotal evidence suggests that take-up is slow. Despite this, the Rolls Building is encouraging users to take part in the pilot and the Government is firmly committed to improving the IT infrastructure, so we expect to see take-up improve and expand to other Divisions.

Pilot schemes for Shorter and Flexible Trials to start on 1 October

As part of a general initiative to improve costs and efficiency, and ensure that London remains an attractive venue for disputes, two pilot schemes have been introduced. The Shorter Trial scheme and Flexible Trial scheme are set out in Practice Direction 51N, and come into force on 1 October 2015. The schemes will run in the Rolls Building (including the Commercial Court, the TCC, and the Chancery Division) and will last for two years. The goal is to achieve shorter and earlier trials for business-related litigation, at a reasonable and proportionate cost.

The Shorter Trial procedure aims to offer dispute resolution on a commercial timescale" and will be suitable for cases which do not require extensive disclosure, or witness or expert evidence. Trials will be no longer than four days, including reading time, and all claims in the scheme will be allocated a designated judge at the first case management conference (CMC). The aim is to reach trial within ten months of the issue of proceedings. After trial, the court will endeavour to hand down judgment within six weeks.Costs budgeting will not apply unless the parties agree otherwise. Instead, within 21 days of the conclusion of the trial, the parties shall each file and simultaneously exchange schedules of their costs, with enough detail for the trial judge to make a summary assessment. A claimant intent on using the Shorter Trials scheme should, except in cases of real emergency or where there is good reason not to do so, send the defendant a letter before claim advising them of their intention to use the scheme. An application can also be made to transfer a case into or out of the scheme, and the court may suggest use of the scheme where it thinks it suitable. Ideally, such applications should be made before the first CMC.

The Flexible Trial scheme allows parties, by agreement, to adapt the trial procedure (including disclosure, witness and expert evidence and submissions at trial) to suit their particular case. Again, it involves limited disclosure and oral evidence and should assist in reducing litigation cost and the time required for trial, as well as ensuring that appropriate cases reach trial earlier. The key is flexibility and choice and the scheme is voluntary. Any agreement to be part of the scheme should be made before the first CMC and the court must be advised accordingly.

Given the flexibility already available to judges under their case management powers, it will be interesting to see what impact these schemes will have. We will monitor developments closely.