On Monday 7 September, the Commercial Court presented its first virtual seminar as part of the celebration of the Court’s 125th anniversary, entitled: “Year 126 and onwards: planning for the future of London’s Commercial Court“. Chaired by Lord Justice Flaux, the Supervising Lord Justice for the Commercial Court, the event comprised panel sessions on virtual and hybrid hearings, the disclosure pilot and the future of witness statements. Some points of interest from the discussions are highlighted below.
Virtual and hybrid hearings
The move to virtual hearings in the Commercial Court has been remarkably successful, with the court able to conduct the vast majority of scheduled hearings during lockdown. Now that restrictions have eased, some cases are being heard through a hybrid of physical and remote attendance.
A panel chaired by Mrs Justice Cockerill, the Judge in charge of the Commercial Court, considered the advantages and disadvantages of virtual hearings for different hearing types. The key advantage is seen as the potential for cost saving, particularly where parties or witnesses would need to travel long distances to attend court. Virtual hearings can also give scope for more client representatives to be involved than would be able to attend court in person. There are however a number of disadvantages, including greater difficulty in taking instructions, the loss of visual clues regarding the parties’ reactions to particular points, and less free-flowing discussions and judicial intervention. Concerns were expressed in particular at the potential disadvantages for more junior barristers and solicitors, who may lose much of the benefit of attending court in terms of their legal and practical education and experience.
The potential to have at least some hearings, or elements of hearings, continue to operate remotely does however seem to have been popular among attendees of the seminar, based on the results of a poll conducted during the session. The results were as follows:
- 81% said procedural hearings (up to half a day) should be remote by default.
- 60% said the parties should be able to agree that a CMC will not be virtual, whatever the court’s view.
- 58% said hearings of substantial interlocutory applications should remain virtual in some form.
- 80% said only main witnesses should attend court physically, with a presumption that minor witnesses will give evidence remotely.
- 72% said they would favour other portions of trial (eg submissions) also being held remotely.
A disclosure pilot scheme has been underway since the beginning of 2019 in the Business and Property Courts, including the Commercial Court. Governed by rules set out in CPR Practice Direction (PD) 51U, the pilot was originally intended to run for two years but it has been extended to the end of 2021 to give a greater opportunity to see how the pilot is working and whether it achieves its aims – including, crucially, to save costs.
A panel chaired by Ed Crosse, who is a member of the disclosure working group, considered the pilot rules and the feedback received to date, as well as setting out some proposals for amendments to the pilot rules which are to be put before the Civil Procedure Rule Committee (CPRC) this autumn.
Prof Rachael Mulheron of QMUL, who has been monitoring the pilot, outlined some positive and negative aspects that stood out from the feedback received to date. The key positives are: the introduction of the initial disclosure stage; the need to look at technology-assisted review at an early stage; and the introduction of a duty of cooperation in the disclosure process. On the negative side, there are concerns regarding: the list of issues for disclosure and the potential for this to lead to disputes; the front-loading of costs including in preparing the Disclosure Review Document (DRD); the increased burdens in relation to document preservation including the need to contact ex-employees; and the need to select disclosure models per issue which is requiring a lot of work.
As regards the proposed amendments to the pilot rules, points mentioned during the session include changes to:
- Clarify the timing of the obligation to disclose “known adverse documents” – at the moment the PD could be interpreted to suggest that these need to be provided with initial disclosure, which is not what is intended.
- Clarify that document preservation notices will only need to be sent to former employees where there are reasonable grounds to believe that the relevant person has potentially disclosable documents that are not already in the possession of the party to the litigation.
- Clarify the scope of “Model C” request-based disclosure, and in particular that this is intended to relate to narrow categories of specific requests – ie it should not typically involve wide-ranging “any and all documents relating to x issue” type requests that you might find in a “Redfern Schedule” in international arbitration.
- Simplify section 2 of the DRD, which provides the court with information about the data held by each party, and allow parties to tailor it more easily to their cases.
A witness evidence working group was set up in 2018 to consider potential reforms in light of concerns that witness statements often contain irrelevant or inadmissible material and do not always achieve best evidence. The group’s report was published in December 2019 and made various recommendations, including that an authoritative statement of best practice should be prepared. A draft of that statement has now been prepared by the working group, in the form of a draft PD 57AC and Appendix, and was available for review by attendees of the seminar. The draft will in due course be considered by the Business and Property Courts Board and the CPRC.
A panel chaired by Mr Justice Andrew Baker, and which included our own Chris Bushell, both of whom are members of the working group, considered the aims of the draft PD and Appendix and the extent to which they are likely to achieve these. In broad terms, the aims include improving witness evidence by reducing the potential for a witness’s recollections to be influenced or overwritten by the process of taking the statement itself, as well as refocusing witness evidence on the areas where it is actually needed – rather than the detailed recitation of and commentary on the documents which is often found in witness statements at the moment. It is also hoped that, as well as improving witness evidence, this will increase cost efficiency and reduce the burdens on witnesses.
As well as the best practice statement itself, the draft includes a new enhanced statement of truth from the witness and a new certificate of compliance from the legal representative, both of which should help focus minds on the necessary change of practice. Two other aspects are new: (i) a new requirement that for important disputed matters of fact the statement should, if practicable, state how well the witness recalls the matter in question and indicate the extent to which that recollection has been affected by considering documents; and (ii) a new requirement to identify what documents, if any, the witness has referred to or been referred to for the purpose of providing the statement.
The one area on which the working group is divided is the requirement referred to at (ii) above. Some members of the working group believe this strikes the appropriate balance between transparency regarding the interactions with the witness, on the one hand, and party autonomy in presenting the evidence, on the other, and gives the judge important information to help him or her assess the weight to be attached to the witness’s evidence. However, some members believe the requirement goes too far, particularly when considering large, complex commercial cases where the relevant events may have taken place some years before and it may be necessary to take the witness through the contemporaneous documents to put them back in the relevant context and see what evidence they can give. The concerns include: the possibility of judges drawing adverse inferences from a long list as to the quality of the witness’s evidence, where that may not be justified; obvious difficulties regarding the witness who is also the client, and will therefore have to review documents in the course of giving instructions; and potential difficulties regarding the need to list privileged documents.