Date: 11 May 2017
Leading European IP boutique Maucher Jenkins recently represented the well-known financial services company, FIL Ltd. (Fidelity International), in an application brought by the defendants, the Fidelis insurance group, to transfer the case out of the pilot Shorter Trials Scheme (STS).
The STS procedure was adopted in October 2015, with the aim of achieving shorter and earlier trials for commercial litigation, at a reasonable and proportionate cost. The procedure is intended for cases which can be fairly tried on the basis of limited disclosure and oral evidence.
On behalf of FIL, Maucher Jenkins issued in the STS in order to get a trial date within 8 months of the Case Management Conference. Bristows, acting for Fidelis, made an application to transfer the case to the multi-track (the normal High Court track), which would have delayed the trial by up to 6 months.
On 28 April 2017 the judge, Mr Justice Arnold, rejected Fidelis' application and kept the case in the STS. While the recent hearing was a CMC, nonetheless interesting points arose from the judge's handling of it. In particular, Arnold J clarified that the three days in court and one day pre-reading limit in the STS did not preclude an additional day being added for writing closing submissions in a more complex case. In other words, the day off for writing closings is not taken into account. This confirms that the STS can be flexible even on trial length and accommodate a slightly larger case than previously thought.
Furthermore, Mr Justice Arnold rejected Fidelis' assertions that multiple expert witnesses were needed, and allowed one expert per side with page limits on the expert reports. This confirms that the need for expert evidence per se is no bar to use of the STS; it is only extensive expert evidence that is likely to make a case unsuitable for the procedure. This follows the recent decision in Neptune (Europe) Ltd v Devol Kitchens Ltd.  EWHC 544 (Pat), in which Arnold J allowed the defendant to bring in an expert in an STS case and held that, even if it resulted in a slight extension to the 4 day limit, that was not a difficulty. The Neptune decision illustrates that an extra day or half-day in court is not a deal-breaker under the STS, and the recent decision in FIL's favour confirms that the Scheme has flexibility. Both decisions demonstrate judicial commitment to the shorter time-frames and more stream-lined, cost-effective procedures available under the STS.
Commenting on the CMC, partner Angela Fox said: "This is an unusual application in that it was made to transfer a case out of the STS and up to the multi-track, instead of down to the IPEC. This is an excellent outcome for our client, who flew in from Bermuda to attend the hearing. We are now working hard to get this case ready for a trial between December and February".
The Maucher Jenkins team was led by Angela Fox, with assistance from associates Richard Parsons and Mark Webster.