Commercial Disputes
Commercial dispute resolution refers to disputes between business entities. The same Court Rules apply as with general civil claims but different tactical considerations may arise and different types of specialist courts and types of law may arise.
Disputes may be resolved through a number of methods. Litigation involves the resolution of disputes by actual Court litigation or threat of litigation. Alternatively dispute may be dealt with by arbitration. If there is a particular arbitration by an independent arbitrator or alternatively via alternative dispute resolution.
Arbitration is where the parties may agree to binding arbitration after a dispute has arisen. In this event they will be bound by the results of the arbitrator’s decision. Alternatively and quite commonly a contract or some arrangement between the parties which was entered before the dispute will itself say that the dispute must be taken via arbitration. In this case arbitration is mandatory unless both parties waive the requirement.
Alternative dispute resolution refers to a number of different mechanisms the purpose of which is to secure a resolution through a negotiated process usually involving a third party mediator or conciliator without litigation commencing.
Commercial Court
Much commercial litigation is conducted in the English Commercial Court. The Commercial Court has special practices and procedures. It is designed as a specialist service for the business community. The judges are experts who are specifically assigned to the Court. They would have practised in the Court concerned before becoming judge and are experts in the type of cases concerned. The Court is most used where disputes involve complex matters.
The primary purpose of the Court is to prevent litigation getting bogged down by jurys or amount of evidence. Commercial Court cases generally come to trial within 7/8 months from the date of the case management conference.
A case should only commence in the Commercial Court if it qualifies as a commercial claim. A commercial claim is any claim arising out of trade or commerce and would include claims relating to any of the following:-
- breach of contract
- import of goods
- carriage of goods
- insurance
- banking and financial services
- markets and exchanges
- sale of commodities
- ship construction business agency
- or litigation arising out of arbitration.
It is possible for cases to be transferred from other Courts into the Commercial Court.
Court Procedure
The Commercial Court rules are broadly similar to the general Civil Procedure Rules but with certain enhancements and modifications.
The parties must prepare statements of cases for the benefit of the Court. The Court undertakes case management in a different way, to the other courts.
Statements of case must be exchanged within a fixed time period. A case memorandum, of issues and bundles of documents must be produced. They must be updated and amended through the life of the case and will be used by the Court at every stage.
There is a mandatory case management conference which is to be held after the statements of case have been served. At the case management conference, the Court will discuss the issues in the case, set a pre trial timetable, and give such directions as are necessary. The parties must report to the Court on the progress of the litigation using a progress and monitoring information sheet. The Court will (without a hearing) consider the progress and give directions as it thinks fit on the preparation for the trial. If all parties to the case are ready they must complete a pre trial check list. There will often be pre trial review by the Court.
Once the claims have been issued and defences have been served, the parties are to prepare a memorandum and a list of issues. This should set out a description of what the case is about and a summary of the procedural history since it was commenced. The list should agree the important issues of fact and law in the case.
Case Management
The claimant’s solicitor must prepare a case management bundle which should contain the claim form, the case memorandum, the list of issues, the pre trial timetable, statements of case and all principal order made and written agreements in relation to disclosure. This must first be lodged at least 10 days before the case management conference and must be updated as orders and agreements are made.
The claimant must apply for a case management conference once a defence has been served. If the claimant does not apply the defendant is entitled to apply. The Court can fix a case management conference on its own initiative if it sees fit. The case management conference will usually be attended by solicitors without the parties. Each party must complete a case management information sheet beforehand.
At the case management conference the judge discusses the issues in the case, the requirements of the case and fixes the pre trial timetable insofar as possible. It is possible to apply for costs at the case management conference. The Courts are also obliged to consider applications for adjournment to enable the parties to negotiate a settlement or to use alternative dispute resolutions.
At the case management conference, the Court will fix a progress monitoring date which will usually be after the time for exchanging witness statements and expert reports expires. Parties must serve and file a monitoring information sheet three days before the progress monitoring date and set out the extent to which they have been able to comply with the pre trial time table and whether they are ready for trial.
Pre-Trial
If the parties indicate on the progress monitoring information sheet that they are ready for trial they must, within seven days, file a completed pre trial check list. The Court will then confirm the trial date. If progress monitoring does not show that the parties are likely to be ready in time, the Court can reconvene the case management conference. They can rewrite a pre trial time table and give further directions.
Normally the Commercial Court fixes a trial date immediately after the pre trial time table has been set at the case management conference. The Court will order a pre trial review if it considers appropriate. This will be four to six weeks before the trial and should be attended by the legal representatives. The time table should be finalised at this point.
There are special procedures to deal with pre trial applications in the Commercial Court which take account of the complexity and types of issues which may arise. There are special procedures to ensure that these pre trial applications have sufficient time allotted to them and are therefore efficient. If an outline of argument is to be made at the application it must be made in advance.
The position with experts is the same in the Commercial Court as with other Courts. The expert’s overriding obligation is to the Court. The expert can apply to the Court for directions as to how he should fulfil his duties as expert.
The Commercial Court encourages use of information technology where it is likely to save time and costs and increase accuracy. Parties must prepare outline arguments in advance before the trial. Chronologies and indexes are to be furnished where they will be helpful.
