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Report No. 188

Commercial Courts' Guide, 2002 (UK)

The Guide consists of sections A to P and Appendices 1 to 16. Section A is preliminary.

Section B deals with Commencement, Transfer and Removal; Section C to Particulars of Claim, defence and reply; Section D to 'Case Management in the Commercial Court; Section E to Disclosure, Section F to Application, Section G to Alternative Dispute Resolution (ADR); Section H to Evidence for trial; Section J to trial; Section K to After Trial; Section L to Multi-party Disputes; Section M to 'Litigants in person'; Section N to 'Admiralty'; Section O to Arbitration and Section P to 'Miscellaneous'.

Section D is important as it deals with Case Management. The pretrial dates for parties taking various steps are heard by a single judge on the commercial side. Section D prescribes ten key features of case management in the Commercial Court and clause D4.2 states that all applications in the case, except applications for interim payment, will be heard and the trial itself, will be headed by one or other of the designated judges.

Clause D5 states that, in order that the judge conducting case management conference may be informed of the general nature of the case and the issues which are expected to arise, after service of the defence and any reply (if any) by solicitors, counsel for each party shall draft an agreed case-memorandum which must contain (i) a short and uncontroversial description of what the case is about and (ii) a very short and uncontroversial summary of the material preceding history of the case. The memorandum is only to help the judge understand the issues in the case broadly.

Under clause D6, parties shall try to produce an agreed list of issues. Under D7, case management bundle of various documents is to be prepared, including an agreement in writing made by the parties to disclose documents without making a list or any agreement in writing that disclosure (or inspection or both) shall take place in stages.

Clause D8 deals with Case Management Conference and application for that purpose. Under clause D8.7 at the Case Management Conference, the judge will

(i) discuss the issues in the case and the requirement of the case, with the advocates in the case;

(ii) fix the entire pre-trial time-table, or, if that is not practicable, fix as much of the trial time-table as possible; and

(iii) in appropriate cases, make an ADR order.

Clause D8.8 states that Rules 3.1(2) and 58.13(4) which enable stay of proceedings while the parties try to settle the case by alternative means, apply. In appropriate cases, ADR order can be made without a stay of proceeding at the pre-trial stage.

Clause D8.9 states that the pre-trial time-table will normally include (i) a progress monitoring date and (ii) a direction that parties meet the Clerk to the Commercial Court, to obtain a fixed date of trial.

Under clause D8.10 parties by consent can vary these dates other than the date fixed for trial, to suit their convenience.

Under clause D10.10, Case Management Conference must take place normally within 6 weeks after service and the filing of defendant's evidence.

Under clause D11, it is said that the Court will continue to take an active role in the management of the case throughout its progress to trial.

Clause D12 refers to 'Progress Monitoring' for which a date will be fixed at the Case Management Conference. Under clause D16, most cases will be given fixed trial dates immediately after the pre-trial time-table has been set at the Case Management Conference.

Clause D17 states that at the case management conference, an estimate will be made of the minimum and maximum lengths of trial. The estimate will appear in the pre-trial time-table and will be the basis on which a date for trial will be fixed. Clause D17.2 provides for revision if Advocates change but clause D17.3 requires a confirmed estimate of the minimum and maximum lengths of the trial, signed by the advocates who are to appear at the trial, be attached to the pre-trial checklist.

Under clause D18.4, parties must attempt to agree upon a time-table for the trial, providing for oral submissions, witnesses of fact and expert evidence. Claimant has to file a draft time-table in this behalf.

Sec. G of the Guide which deals with ADR is also important. ADR is not confined to mediation or conciliation. Clause G1.2 states that ADR

(i) significantly helps parties to save costs;

(ii) saves parties the delay of litigation in reaching finality in disputes;

(iii) enables parties to achieve settlement of their disputes while preserving their existing commercial relationships and market reputation;

(iv) provides parties with a wider range of solutions than those offered by litigation; and

(v) is likely to make a substantial contribution to the more efficient use of judicial resources.

As per clause G1.3, the Commercial Judge will, in appropriate cases, invite the parties to consider if that dispute or particular issues in it, could be resolved by ADR. This will be considered at the case management conference. Under G1.7, the judge may make appropriate orders.

Under G2.1, the Court will provide, without prejudice, non-binding, early neutral evaluation of a dispute or particular issues. Under clause G2.4, the Judge in charge will nominate a judge to conduct such evaluation but the judge who is so nominated, will take no further part in the case, either for the purpose of hearing of applications or as the judge at trial, unless parties agree otherwise.

Section H deals with 'Evidence at Trial'. Under H1.1, "the witnesses" statements in prescribed form have to be filed. This should be factual and must be in the witness's own words, should not contain lengthy quotation from documents, should not be argumentative and must indicate which part of the statements are made from one's own knowledge and which from other sources, giving details of source. It must contain a statement by the witness that he believes the matters stated in it are true; proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false statement in a witness statement without an honest belief in its truth (see Civil Procedure Rule 32.14(1)).

Clause H1.2 states it is improper to put pressure of any kind on a witness to give anything other than his own account of the matter. It is also improper to serve a witness statement which is known to be false or which it is known that the maker does not, in all respects, actually believe to be true.

Under cl. H1.5, witness statement is treated a chief examination unless the Court orders otherwise. It also says that in an appropriate case, the trial judge may direct that the whole or any part of a witness's evidence in chief is to be given orally. Under cl. H1.6(a), a witness who has given written statement can give oral evidence to amplify the same or give evidence in relation to new matters, subject to Court permission. A written witness statement may be allowed to be corrected by a supplemental statement, subject to court's permission.

Under cl. H3, evidence by video-link is permitted, with Court permission. In granting permission, the Court will be concerned in particular to balance any potential savings of costs against the inability to observe the witness at first hand when giving evidence. Under cl. H4, evidence taken abroad may be given with Court permission (see Civil Procedure Rules, Part 34), such as by issue of letters of request. Section I deals with 'Trial' and provides for mode of filing documents, skeletal arguments, case law, oral arguments etc, leading to judgment. Clause J12 provides for Draft Judgment to be given to counsel with stamp as follows:

"Unapproved Judgment. No permission is granted to copy or use in Court" and bearing the rubric

"Confidential to counsel and solicitors, but the substance may be communicated to clients not more than one hour before giving of judgment"

Draft Judgment is supplied to counsel one day in advance. Counsel can point out 'typographical or other errors of a similar nature' which the judge might wish to correct. The requirement to treat the text as confidential must be strictly observed. Failure to do so amounts to contempt of Court. Under J12.2, judgment is not treated as delivered till it is finally pronounced in open Court. Execution is contained in sec. K and states the decree will go to the master in the QB Division or to a district judge.

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