Major procedural changes are to be introduced in the Northern Ireland courts with the launch of the Commercial Hub. The new Commercial Practice Direction (No 01 of 2019 - here), which comes into effect on 29 April 2019, applies to all litigated commercial claims, including professional negligence actions, with a value in excess of £30,000.
Its main objective is to resolve disputes “expeditiously, efficiently and cost effectively”. The thrust of the reforms involves tighter management of litigated cases and requires parties to consider alternatives to the to the old-fashioned ambush style of litigation and avoiding costly trials.
To further its stated aims the Commercial Hub is changing the management of documents via an on-line application known as “Box”. Described as being at the foundation of the Hub Box is an on-line system where documents can be uploaded, tracked and shared.
The Commercial Judge will adopt a robust approach to case management involving three key stages:
An Early Directions Hearing within three weeks of service of the proceedings; followed by
Case Management Conferences (up to a maximum of three per case); and finally
A Pre-Trial Review (only if needed).
This replaces the old ‘review’ regime which provided for a more generalised, perhaps looser, style of case review in the lead up to trial.
In some respects, the new procedures appear to be more onerous on the parties. For example:
The judge will carry out further reviews which will be more focused and thorough;
Prior to each review, the court must be provided with a copy of the pleadings, a summary of the case, expert instruction letters, an agreed chronology and a list of issues agreed/in dispute;
New concepts are created such as an uncontested case summary, a list of outstanding issues and an agreed chronology, all of which need to be filed with the court;
The core bundle and trial bundle should be available 4 weeks and 2 weeks before trial respectively (instead of the current seven days).
It is expected that the Hub, which will be overseen by the Commercial Judge Mr Justice Horner, will aim to minimise the burden on the court and the trial process;
The parties are encouraged to consider alternative approaches such as “fast tracking” cases, or permitting Judges to give an Early Neutral Evaluation, or using time-limited oral hearings.
Whereas previously parties had informally been encouraged to minimise the discovery process, the Practice Direction actively promotes a collaborative approach by encouraging parties to introduce only limited or indeed no discovery. Costs penalties may be imposed on parties if they insist on full discovery. Another first is the formal encouragement of e-disclosure.
The court bundles are subject to a granular set of requirements as to how they are to be prepared with limits on size.
Box in practice
Box is being established for use within the Commercial Hub to facilitate the electronic document lodgement requirements within the new Commercial Practice Direction. The software is used by many Northern Ireland Civil Service departments and is secure to Government level.
All parties on record in the case will be invited in by the Court Office to Box for that particular case. To reflect the Practice Direction, a generic folder plan structure will be established. Whilst more than one person from a firm can access the folder each user must be added by the court.
Each party will have the permissions of a “Preview Uploader” for the specific case. This allows the user to view and upload documents. However, this also limits what the party can do. A preview uploader cannot delete, change or download any document within Box. Hence, if a mistake is made only the court office will be able to address it.
There are built-in notifications within Box that let parties know when other parties access or upload documents into folders. The Commercial Court has developed specific “Naming Conventions” to ensure that the name of the document being uploaded is easily identifiable and searchable. Clear guidance is given on how to name specific documents.
If a case involves personal litigants, the onus will be on the solicitors involved in the case to assist them with the Commercial Hub.
It is likely that the new software will be introduced gradually, rather than overnight. At present uploading a document into “Box” does not substitute the document being served on the other side. There are plans to put Wi-Fi into all courtrooms with the idea being that there will be no paper bundles. At present, however, core paper bundles will still be required.
What this means for you
Those handling commercial litigation in Northern Ireland will need to ensure that they are fully conversant with the new regime and appreciate that both for them and for their clients there will have to be a new way of working.
The Practice Direction has no transitional provisions so it applies to all commercial actions including those issued prior to 29 April 2019; consideration will need to be given as to whether to bring existing litigated cases within the scope of its provisions.
Framed on the basis that practitioners are “expected to fully comply”, there are a variety of possible sanctions for the failure to do so including costs orders and the dismissal, striking out of limiting of part or the whole of a party’s case. It remains to be seen how robustly those sanctions will be applied – the Practice Direction refers to an aim of a “culture of compliance with court directions”. Practitioners should be prepared for being held to the timetable especially in the early months of the operation of the new regime whilst to the court seeks to set the appropriate tone.
The terminology used in the Practice Direction, including reference to ‘Case Management Conferences’ and the use of case budgets, suggests the Court is leaning towards the English model, by adopting a more collaborative, front-loaded approach to claims. This is shown particularly in the approach to disclosure where in seeking to limit the disclosure process and with the provisions in relation to e-disclosure there are real echoes of the approach to disclosure that is required by the Disclosure Pilot Scheme in the Business and Property Courts of England and Wales, which came into force at the beginning of the year.
We will be keeping under close review how the changes are implemented. We expect the judge will keep a keen eye on parties that do not comply and clients will need to consider case strategies and budgets accordingly. Overall it is anticipated that the pace of litigation in Northern Ireland, at least for commercial actions, is likely to quicken – that is to be welcomed for those who seek a cost effective and efficient approach to the resolution of claims.
Should you wish to discuss any issues arising from the developments highlighted above please do not hesitate to contact our Graeme Moore or Michelle McCullough.