New Case Management Procedures in the Superior Courts Niall Ó hUiginn BL

Background “Brevity and simplicity are the hand-maidens of justice, length and complexity its enemies” per Bridge L.J. in R v Novac Historically, a perception that court process was too expensive, too slow and too complex Case progression was the responsibility of the parties and there were few constrains on length of hearings

Background Woolf Report led to English civil procedure rules being entirely rewritten. January 2004 – establishment of Commercial Court: Order 63A gives Commercial Court wide case management powers Court may fix timeframes for making discovery, exchanging witness statements etc. Failure to comply with directions may result in costs’ penalties

Background Establishment of Commercial Court a resounding success In 2015: 148 cases admitted to Commercial List; 111 resolved By contrast, 2,310 case initiated in Chancery List; 679 resolved Court of Appeal established in 2014 automatic directions hearings, strictly limited hearing times

Background Two new regulations amending RSC came into force on 1 October 2016: Rules of the Superior Courts (Chancery and Non-Jury Actions and Other Designated Proceedings: Pre-Trial Procedures) 2016 (“Order 63C”) and Rules of the Superior Courts (Conduct of Trials) 2016 (“Case Management Rules”)

Case Management Rules New Order 63C effectively extends provisions applicable in the commercial list to (a) proceedings in Chancery List; (b) proceedings in the Non-Jury List and (c) such other proceedings as HCt President may designate

Case Management Rules Specific “list” judges and registrars will oversee case management of the Chancery and Non-Jury Lists Case Management Rules not yet being applied - no lists judges appointed – 2 months notice will be given before application begins

Case Management Rules 3 distinct aspects to the new case management system: Pre-Trial Directions Case Management Conferences Pre-Trial Conferences

Case Management Rules Pre-Trial Directions: Order 63C, rule 5(1) RSC sets out comprehensive list of directions which may be made of judge’s own motion after hearing the parties or on the application of one of the parties No automatic case management hearing All judges (not just list judges) given general power to make any direction to expedite proceedings and minimise costs

Case Management Rules Pre-Trial Directions (continued): Order 63C, rule 5(1) RSC sets out comprehensive list of directions that may be made, including: exchange of pleadings discovery, interrogatories, inspection modular trials, fixing issues alternative dispute resolution

Case Management Rules Case Management Conferences: Order 63, rule 6 - a case management conference may be directed by the list judge of his or her own motion or on the application of one of the parties; A case management conference shall be directed in cases where the process appears appropriate: “by virtue of their complexity, the number of issues or parties, the volume of evidence, or for other special reason.”

Case Management Rules Case Management Conferences (continued): Solicitor or counsel for each party must attend and must be familiar with issues and have authority to deal with issues; More intensive oversight of pre-trial preparation. Similar procedure available in Commercial Court proceedings but not often used in practice Costly: parties required to prepare chronology, list of issues in dispute, etc.

Case Management Rules Pre-Trial Conferences: Order 63, rule 9 provides for mandatory pre-trial conferences (unless the list judge dispenses with the requirement) At present, practitioners are charged with certifying the readiness of a case for trial and its likely duration With the pre-trial conference, it will be for the judge to certify these matters.

Case Management Rules Pre-Trial Conferences (continued): Order 63, rule 14 provides that chancery and non-jury matters will be given once a certificate of readiness has been issued; Ordinarily, the judge chairing the pre-trial conference will be the trial judge Order 63, rule 15 requires the plaintiff to prepare and lodge a trial booklet not less than 14 days before the date listed for trial.

Witness Statements Order 63, rule 17(1) provides that unless the list judge directs otherwise, witnesses as to fact and expert must provide witness statements and expert reports not later than 30 days before trial. Rule 17(3): witness statement or expert report may in “exceptional circumstances” constitute the evidence in chief of the relevant witness, subject to it being verified on oath.

Witness Statements Significant additional cost required to prepare for trial Additional cost of experts May shorten evidence at trial somewhat Will change dynamic of trials, less risk of surprise

Miscellaneous Electronic filing Costs – as a default: Documents required under Order 63C may be filed electronically Not yet in force Costs – as a default: Cost of pre-trial directions shall be costs in the cause Cost occasioned by non-compliance with rules borne by party which has defaulted Judge has discretion to depart from default rules

Conduct of Trial Rules Unlike the Case Management Rules which create an entirely new Order 63C to the RSC, the Conduct of Trial Rules involves a series of amendments to existing rules of the RSC S.I. No. 254 of 2016: “to regulate…the procedure for the conduct of the trial and adducing of expert evidence”

Expert Evidence New rules require that both a Statement of Claim and Defence should: Disclose any intention to offer expert evidence on any matter at trial; State succinctly the field of expertise concerned; and Describe the matters on which expert evidence is intended or proposed to be offered

Expert Evidence Applies to all High Court proceedings except personal injuries (governed by separate regime) Will help prevent trial by ambush but likely to increase expert involvement and expense In professional negligence actions expert report usually obtained before proceedings commenced It remains to be seen how courts will treat non-compliance with the new rules on pleading.

Streamlining Expert Evidence New Order 39, rules 57-61 governing expert evidence (rules 59-61 apply only to Commercial, Competition, Chancery and Non-Jury Lists) Aims to streamline expert evidence and avoid duplication Duties of expert specified: “to assist the Court as to matters within his or her field” Overrides obligations to client

Streamlining Expert Evidence Each party can call only one expert in a given field unless with leave of Court Court given wide range of general powers in relation to experts Court can direct “single joint expert” where parties propose calling at least two experts in same field Court can choose person to act in default of agreement, set terms of reference and make directions in relation to payment of fees

Streamlining Expert Evidence Interrogation of expert witnesses Written questions can be put to experts within 28 days after report served Answers form part of report May refuse to answer if disproportionate, unnecessary or outside field of expertise

Streamlining Expert Evidence In certain cases, court may direct pre-trial meeting of experts Meet privately without lawyers and draw up joint statement setting out matters agreed and in dispute Judge may also direct “debate among experts” (hot tubbing) Both experts sworn at same time Both present evidence according to judge’s directions Cross-examination may or may not be allowed

Non-Party Information Court may direct non-part to prepare and file a document recording information where that information “is not reasonably available to a party to the cause or matter” In effect, a non-party witness statement Information must be non-procurable through non-party discovery or interrogatories More suitable where information not in documentary form

Time Management of Trials New Order 36, rule 42 applies to all High Court proceedings Court may require any party to proceedings to provide a reasoned estimate of the time likely to be spent in the trial of the proceedings (including list of witnesses and time for each) Court may accept proposed time or determine time limit itself

Time Management of Trials Trial judge given broad powers to manage time of trial, including by: Fixing time for opening/closing case, examination of witnesses etc. Giving directions on various matters including: Issues on which court requires evidence Nature of evidence required Manner in which evidence is to be put before the court

Miscellaneous Courts given additional powers in relation to: Modular Trials (Order 36, rule 9) Assessors (Order 36, rule 41) Video link evidence (Order 39, rule 55)