1. Flexible trial procedures; costs budgeting Nigel Giffin QC Procurement Lawyers’ Association AGM 29 January 2016

2. Flexible procedures – what the draft procurement protocol says Paragraph 13: “The parties should be aware of the pilot scheme for Shorter and Flexible Trial Procedures and Practice Direction 51N and to address their minds to the question of whether either scheme might be appropriate for their case. These issues should be addressed at the first CMC.” 11kbw.com2

3. What Practice Direction 51N is CPR Part 51 allows practice directions to modify/disapply CPR provisions in pilot scheme PD51N is a 2 year pilot scheme for the Rolls Building courts including the TCC (1 October 2015 to 30 September 2017) Deals with a “Shorter Trials Scheme” (STS) and a “Flexible Trials Scheme” (FTS) See also published 3 page guidance (“Guidance”) 11kbw.com3

4. What PD51N is aimed at STS :  For trials no longer than 4 days including reading time (PD para 2.4)  Cases which can fairly be tried on basis of limited disclosure and oral evidence (Guidance para 3)  PD para 2.3: “will not normally be suitable for... (e) public procurement cases.” FTS:  “Involves the adoption of more flexible case management procedures where the parties so agree” (Guidance para 4)  Designed to encourage parties to limit disclosure, and confine oral evidence to minimum necessary (with identified issues determined on written evidence/submissions) (PD paras 3.3, 3.4) 11kbw.com4

5. Relevance of PD51N to procurement cases – a personal view (1 - STS) STS is of real potential interest, despite PD para 2.3(e) – though that may discourage use, especially if parties not agreed:  Class of procurement cases where there is a limited central allegation, known from the outset, about “what has gone wrong”  Claimants with limited resources may be keen to stick to that central point to keep costs down (N.B. effective remedy requirements and costs – see C-61/14 Orizzonte) – also use STS as argument for maintaining suspension?  May be little dispute of primary fact about what occurred, as opposed to its significance - numbers of procurement trials have completed within 4 days (Letting International; Mears; Resource NI; Woods; Risk Management) – growing judicial familiarity with procurement limits need for exposition of law  Query whether the 4 day trial has to include quantum  Would need some modification to normal STS timings in cases where expedition required e.g. re timing of CMC 11kbw.com5

6. Relevance of PD51N to procurement cases – a personal view (2 - FTS) Not so easy to see the attraction of FTS in most cases (if STS assumed to be available but rejected):  Requires agreement, and disclosure burden rests mainly on defendant – if challenge not limited to particular short issue(s), claimants are likely to want defendant to have to search in normal way  May be cases where particular issues are apt for determination on written submissions/evidence, but does not feel like the typical procurement situation  Existing CPR provisions already allow flexibility in approach to disclosure – see CPR r.31.15 11kbw.com6

7. Who decides? FTS: agreed by parties in advance of first CMC STS: Claimant notifies intention in letter of claim Defendant states position in response Claimant decides whether to issue under STS Defendant can apply promptly (not normally later than first CMC) to transfer out Defendant can also apply to transfer in (unlikely to succeed if claimant makes plausible case for needing normal disclosure?) Decide at CMC if in dispute - court can self suggest (unlikely if both parties oppose?) 11kbw.com7

8. STS – key features (1) Trial length not more than 4 days including reading Pre-action procedure: letter of claim - succinct details allowing defendant to understand and investigate Claim form promptly after defendant’s response – includes particulars (max 20 pages) + detailed calculations of sums claimed + core documents Defence (max 20 pages) + extra core documents All dealt with by designated judge where possible – applications other than CMC and PTR without hearing: see PD para 2.48 11kbw.com8

9. STS – key features (2) Trial date/window not more than 8 months after CMC; judgment normally within 6 weeks – Court of Appeal will take STS use into account when deciding when to consider permission/when to list appeal Disclosure report and duty of search do not apply Specific disclosure requests 14 days in advance of CMC – raised at CMC if not agreed – PD para 2.41 for approach Default disclosure position = documents relied on + those requested and agreed/ordered as above + brief description of steps to locate – further applications for specific disclosure discouraged Witness statements max 25 pages – CMC may limit to identified issues/topics – only principal parts of case need be put in cross-examination Summary assessment of costs by trial judge following exchanged schedules 11kbw.com9

10. FTS – key features Standard procedure in PD para 3.9 – parties can vary by agreement Standard disclosure, of documents “actually known to fall within” without need for search – PD para 3.9(b) approach to specific disclosure Oral evidence limited to identified issues or witnesses as directed at CMC or agreed – only principal parts of case need be put in cross- examination – other issues to be determined on written evidence and submissions 11kbw.com10

11. Costs budgeting – what the draft procurement protocol says Paragraph 14 (also re e-disclosure): CPR Part 3.13 and PD 3E apply Recognises that may be:  Uncertainty as to course proceedings may take so that not possible to prepare realistic costs budget  Insufficient time for sensible costs budgets in advance of CMC because of speed at which proceedings being pursued Claimant should apply for urgent order that unnecessary to serve costs budgets 7 days before CMC – normally dealt with on paper 11kbw.com11