Reforms
Commercial litigation reforms draw mixed response
Lawyers welcomed attempts to find practical solutions to 'mega' cases, but say they will only work if judges apply them
Litigation lawyers have been cautious in welcoming proposed reforms aimed at cutting the length and cost of complex commercial court cases.
A report by the "commercial court long trials" working party has proposed a series of changes including limiting trials to three months and barristers' opening submissions to two days.
Ali Malek, QC, chairman of the Commercial Bar Association, said the report provided "practical solutions" to problems that arise during complex litigation.
Mr Malek said that shorter witness statements, statements of case and opening speeches would reduce costs.
He said: “I am optimistic that when the proposals and recommendations are put into practice for a trial period [from February 1, 2008] we will see that they work well.
“Implementation of the report will enhance the commercial court’s reputation in handling complex litigation, both here and abroad.”
Peter Watson, a litigation partner at Allen & Overy, said he “thoroughly endorses the attempt to bring more focus to witness statements, particularly encouraging ‘gist’ statements. This will save time and money."
Mr Watson said the proposals were generally “sensible”, but added that it was “difficult to see some applying in practice, for example limiting the length of statements of case".
Other litigators said that although the provided a useful framework, they would only be successful if judges implemented them.
Clare Canning, a partner at Mayer Brown who acted for Ernst & Young in the Equitable Life case, one of the trials that prompted the review, said: “The aspirations to cut wasteful and costly proceedings are obviously sensible. But from my experience of ‘mega’ cases, what will really make a difference is the freeing up of commercial court judges to take a proactive rather than reactive role in case management.”
Another litigator involved in the Equitable case echoed Ms Canning’s view on judges getting more involved.
“Judges have, particularly since the Woolf reforms, extensive case management powers — the real problem is that they do not use them as aggressively as they might.
"The best solution is to have flexible rules but to encourage judges to apply them aggressively. What is really needed is a cultural shift.”
(Published by Times Online, December 06, 2007)
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