The need for alignment
In 2017 the Business and Property Courts (B&PC) were created as a single umbrella for the jurisdictions within the English court system dealing with litigation in business, finance and property matters. Within that umbrella there are different “courts” dealing with specific work types, the most significant jurisdictions being the Commercial Court and Chancery Division. Although both courts apply the Civil Procedure Rules as their main framework, they each have specific processes developed from deep historical roots and reflective of different work types, as embodied in their separate “court guides”. This divergence in procedural practice within the B&PC causes potential internal inconsistency and difficulties for practitioners. For example, prior to the new guide the timescales for responding to an interim application might have subtle but important differences across the different jurisdictions within the B&PC.
Alignment with the Commercial Court guide?
The new Chancery guide should be seen as an important step towards aligning practices where it is appropriate to do so. Overall, it closes the gap in aspects of core procedure between Chancery and the Commercial Court. The following examples stand out:
- Style – The guide has been completely rewritten in a style similar to that used in the Commercial Court and Technology and Construction Court guides, bringing greater clarity. Notably, key aspects of procedure are now subject to a more formalized timetable and process (e.g., pre-trial reviews (section 11)).
- Applications – This is the area of greatest alignment. The Chancery guide now includes the same distinction found in the Commercial Court guide between ordinary applications (hearing of half a day or less) and heavy applications (hearing of half a day or more) and adopts the same timescales for the filing of evidence.
- Statements of case – Provisions on the format and content of statements of case have been amended to largely mirror those applicable in the Commercial Court. A similar page limit will now apply – 25 pages normally and 40 pages exceptionally (albeit that unlike the Commercial Court an application for permission will not be required to exceed 40 pages (see sections 4.1 – 4.6)).
- Case management – The case management process aligns more closely with that used in the Commercial Court, with express provision for preparation of a case summary and list of issues for trial prior to the case management conference (albeit in a less prescriptive form than the equivalent steps from the Commercial Court guide).
Necessary differences in practice remain
The new guide does retain necessary differences in procedural practice, reflecting the divergence in court users and work types. The Chancery Division has a broad remit with specialist lists and a greater variation in the complexity and value of claims, which necessitates the involvement of different tiers of judge. ‘Masters’ (judges who specialize in pre-trial procedural work) conduct a significant amount of work in Chancery. Some of the procedural steps required in the Commercial Court might not be necessary or appropriate in this context, particularly in terms of the costs involved. For example, in relation to the case management process, the new guide stops short of some of the Commercial Court formalities.
Where the new guide retains Chancery-specific practices, it seeks to achieve internal efficiency and consistency. For example, it largely removes the distinction in process between applications to masters and High Court judges. However, throughout the guide there may be subtle changes to timescales – practitioners should not assume knowledge of pre-hearing timings or practice and should check the guide anew. The new guide is applicable in regional centers although some local practices will remain in place (as outlined in the accompanying practice note from the Vice Chancellor).
Embedding recent procedural reforms
The Disclosure Pilot, a procedural process for scoping and undertaking documentary disclosure, will become a permanent fixture of the B&PC from October 2022. The preparation of the “disclosure review document” (DRD) has been a problematic aspect of the pilot and notably, the new guide (like the Commercial Court guide) places suitable emphasis on the parties keeping the DRD concise and cooperating to resolve issues in relation to extended disclosure in advance of the case management conference.
The updated guide also reflects the recent Practice Direction 57AC (PD57AC) reform, which refocuses trial witness statements on their proper purpose of providing witnesses’ recollection of key matters of fact. Notably, there is provision for the parties to prepare an agreed narrative chronology prior to trial (see sections 8.5 and 8.6) and for this to be given specific consideration at the case management conference. This anticipates the problem that witness evidence concentrating purely on recollection cannot provide the background “narrative” to the parties’ cases cross-referenced to documents. Usefully it also picks up on where the application of PD57AC may not be appropriate for work in specialist lists, with the suggestion that dispensation to deviate may be appropriate in certain contexts (see rectification and rescission claims (section 18.28) and insolvency and companies claims (section 21.25)).
Identifying key areas of risk
The guide has been updated with important examples of risk areas for practitioners derived from recent cases across the court system. Attention to these points may assist good practice. For example:
- Service – Specific warning that following Ideal Shopping v. Mastercard [2022] EWCA Civ 14: the parties must serve the sealed copy of the claim form.
- Experts – The guidance around expert evidence has been expanded to include recent case law developments regarding good practice. For example, section 9.33 makes the point that parties or their legal representatives must not suggest amendments to a joint expert discussion report other than in exceptional circumstances, reflecting the recent case of Andrews v. Kronospan [2022] EWHC 479 (QB) 1915(TCC).
- Without notice applications – A reminder of the importance of the duty of full and frank disclosure, particularly in relation to applications for permission to serve out of the jurisdiction (see section 15.63).
- Search orders – An imaging order rather than search order may be the appropriate remedy in the first instance – TBD (Owen Holland) v. Simons [2020] EWCA Civ 1182 (see section 15.51).
Modernization through technology
A theme of the new guide is the appropriate use of technology to conduct dispute resolution, reflecting the modernization agenda of the senior judiciary. The new guide places stronger emphasis on the use of information technology at trial. Interestingly it specifically encourages the use of IT beyond the use of just electronic trial bundles (see section 12.34).
The step change in the format of trial and hearing bundles instigated by the pandemic is formalized, with e-bundles becoming the default option for all hearings. Bundle guidance has been moved to a new, detailed appendix and expanded to incorporate the lessons learned at speed during the pandemic. Practitioners are well advised to read these detailed provisions, an important theme being that e-bundles still require discernment in preparation, with the sensible selection of material (see appendix X, paragraph 8). Notably, hard copy bundle requirements now come last in the appendix.
Remote and Hybrid Hearings Protocol
Remote hearings are a default option for “ordinary” applications in the new guide. The guide annexes a Remote and Hybrid Hearings Protocol (appendix Z), which brings together disparate sources of knowledge developed during the pandemic and is particularly useful in relation to hybrid hearings, where there has arguably been a lack of clear guidance in a single source. The protocol covers certain issues which have proved contentious in relation to hybrid/remote hearings.
- Specific provision for “participants” (e.g., representatives of the client) to observe a hybrid hearing from abroad (previously a lacuna in the application of the rules) (appendix Z, para. 15).
- Parties must ensure that participation from an outside jurisdiction (as either a witness or other participant) does not infringe local law and should obtain necessary permissions in good time (appendix Z, paras. 15 and 33).
- Notification requirements if witnesses are giving evidence remotely from the offices of a legal representative (appendix Z, para. 34).
- Provision for additional cameras (if appropriate) in locations where a witness is giving evidence remotely (appendix Z, para. 35).
- Reminder that real time transcription and hearing support services require the permission of the court (reflecting a recent case on this point – see appendix Z, para. 43).
Conclusion
The alignment of practices and procedures between courts in the B&PC is a welcome development for practitioners. The new Chancery guide is a step forward in this regard. However, there may be scope for further integration, for example, a single, identical source of practice for bundling. It is also notable that the ambitions of the senior judiciary in respect of delivery of digital justice and process reform do not stop here. The new Chancery guide should be seen as part of a process of continuing improvement rather than an end point.
In-depth 2022-215
