24 April 2019

Court schemes could speed up construction dispute proceedings

Launched in late 2018, two schemes aiming to improve the speed of court proceedings could mean that more construction disputes will be resolved through the Business and Property courts. In this article, construction specialist Sarah Wilson outlines the schemes and the implications for construction disputes.

The Shorter Trails Scheme (STS) and Flexible Trial Scheme (FTS) are designed to make court proceedings quicker and more cost effective by providing a framework for simplifying the court process. Adjudication is often the preferred method of resolving construction disputes, but these two schemes could mean that court proceedings are a practical option for both parties, while providing the opportunity for cost recovery.

The Shorter Trials Scheme (STS)

The aim of the STS is to get a judgment within one year of proceedings being commenced. 

The features of the scheme are:

  1. The trial must take no more than 4 days, including the Judge’s reading time.
  2. It is not suitable where extensive disclosure of documents, or oral evidence by witnesses is required. 
  3. Similarly, it is not suitable for claims of fraud or dishonesty or with multiple parties.
  4. Parties cannot be forced to use it, however, the Court may put pressure on parties to agree it.
  5. The pre-action steps are shorter and simpler, so that parties can issue proceedings more promptly; in particular the Defendant is allowed only 14 days to respond to the Letter of Claim.
  6. The Claim Form, Particulars of Claim and Defence are each limited to 20 pages in length.
  7. A designated Judge will hear all of the proceedings to aid continuity and efficiency.
  8. Disclosure of documents is condensed and issue-based only.  Parties will be required to adopt a pragmatic approach, producing documents that are relied upon, requested, ordered or agreed. 
  9. Witness evidence can also be limited and written statements can be relied upon at trial without the need for oral evidence to be given.
  10. Expert evidence will be limited to written reports and oral evidence limited to identify issues.
  11. There is limited scope for parties to agree extensions of time for the procedural steps and if more time is required this will be decided by the Judge by paper application, without a hearing.
  12. Importantly, there is no provision with the Shorter Trials Scheme for costs budgeting, which often proves time consuming (and therefore costly). Costs will instead be assessed by the Judge, after judgment.

Flexible Trial Scheme (FTS)

As its name suggests, this allows parties to adjust the trial procedure to suit their particular case.  Parties can agree a modified trial procedure, including agreeing the scope of disclosure, witness and expert evidence, and the submissions to be given at trial.

Like the STS, if parties wish to adopt the procedure this should be proposed in advance of the initial case management conference and parties may dispute its applicability. 

In summary

It is good that the courts recognise that businesses want disputes resolving as quickly and cost effectively as possible. However, both schemes will only apply if both parties agree and of course, it has always been possible to agree quicker and more cost effective ways of conducting a trial, but one of the parties will usually object. Having said that, where such things are set out as a specific scheme (as opposed to being available on the initiative/agreement of the parties) these initiatives may be adopted more frequently. Let’s see…

If you have any queries surrounding the above schemes please do not hesitate to contact Sarah Wilson on +44 (0)113 831 392 or email sawilson@shulmans.co.uk.