Collaborative justice: the Commercial Court today

I am honoured to be asked to speak at this year’s conference on the topic of the Commercial Court. This is a year of several important anniversaries. It is the centenary of the 1919 Sex Disqualification (Removal) Act, which opened the professions to women. (And I am delighted so many able women have been selected to present papers at this year’s conference.) It is also 25 years since the founding of the Commercial Court, which is the subject of these remarks.

In considering what I might usefully say in this talk, I began by reflecting on the start of the court. I don’t wish to cast myself as a sort of judicial Scrooge being visited by the ghost of Commercial Court judges of the past, but knowing our past – where we come from – can be useful in understanding why we do things the way we do now.

Early days and ethos

The year I called to the bar coincided with the promulgation of the Rules of the Court of Session 1994. It also coincided with the commencement of the Commercial Court, under the stern command of Lord Penrose as principal commercial judge. I was junior counsel to Arthur Hamilton QC (as he then was) in the first proof conducted before Lord Penrose under the commercial rules. 

Lord Penrose saw it as his task to effect a radical change in the ethos of the conduct of commercial litigation. Any hearing before him was a daunting prospect. He took a strict view on the observance of time limits; and an expansive view of his powers of case management. (He frequently observed that the Commercial Court rules meant what the commercial judge said they did.) Above all, he demanded the highest standards and did not tolerate unprepared counsel.

I do recall one early occasion when a relatively new junior counsel, appearing before him on an unopposed motion, was finding it pretty heavy going and had not anticipated this or worked out a position. After trying for some minutes to make headway, counsel fell back on the old chestnut of asking the court what he should do, by stating: “I am in your Lordship’s hands.” To which Lord Penrose replied: “That’s not a very safe place to be!”

It was, if I may say so, a court and an area of practice that was overwhelmingly male. In all my years of practice I can only recall four or five occasions when another female advocate was instructed in a case in which I appeared. Only two of those occasions were in the Commercial Court; both were where I had a female junior. The masculine atmosphere was reinforced by Lord Penrose’s habitual references to those appearing before him as “gentlemen”, or his occasional appeals that those appearing in court “were all reasonable men”. While in its original usage “man” simply signified an adult human of either gender, my attempts to recapture this original inclusiveness, by referring to myself also as “a reasonable man”, did not meet with approval.

The message the court gave in those days was a necessary one, and it was efficiency, efficiency, efficiency. The strict enforcement of time limits was seen as the necessary antidote to habits of laxity and a culture of delay. 

Commercial Court in the present day

Objectives of efficiency and effectiveness

What of the Commercial Court in the 21st century? What are the objectives it pursues as part of the civil justice landscape? Let me mention several.

The efficient conduct of litigation remains one of the objectives of the court today, as is clear from Practice Note no 1 of 2017, which states the purpose of the court as “to seek to ensure the effective and efficient conduct of commercial actions”.

However, I suggest that equally important objectives include the effective progress of litigation, presided over with fairness and courtesy, resulting in well reasoned, timely and authoritative decisions.

Case management powers as a tool

How are these objectives achieved? How is litigation conducted effectively? The answer is active and judicious case management. However, in contrast to Lord Penrose’s perhaps Olympian pronouncement that the Commercial Court rules mean what he said, in modern times the court has communicated in detail its expectations and ethos to the practising profession in the form of practice notes and guidance.

In addition to the 2017 Practice Note, the court regularly produces and updates guidance for practitioners on more specific topics. These include the following:

• Commercial actions: guidance for practitioners;
• Use of signed witness statements or affidavits;
• Enforcement of adjudication awards;
• Recovery of documents; and
• Dispensation with the court’s usual requirements.

You will be relieved to hear that I am not going to discuss the detail of these.

The intention of these materials is to help all practitioners to understand the court’s expectations and practices, which may inform the exercise of its case management powers. The existence of this guidance is important, given the discretion vested in the commercial judge in the exercise of her case management powers.

Responsiveness to changing needs

The regular issue and updating of its guidance is one way in which the Commercial Court is responsive to the changing needs of its users, both practitioners and clients. Another way in which the court keeps itself informed of these needs is the Commercial Court Consultative Committee. One of its current projects is guidance or styles on abbreviated pleadings. The committee meets three or four times a year. It has representatives from the legal profession (counsel, solicitor advocates, in-house solicitors, solicitors in private practice) as well as from commerce and industry. Use it. Check the website. Contact its members. Make representations or suggestions for improvements through its members for consideration by the committee. The court is always ready to listen to the views of the profession and the wider community it serves.

Cost-effective or proportionate costs

May I mention one further objective of modern commercial litigation? While not stated as an explicit purpose in the practice note I referred to earlier, I also believe that inherent in the “effective and efficient” conduct of commercial litigation is the understanding that the resources deployed should be proportionate. And by “resources” I mean those of the parties and of the court.

This principle of proportionate costs seems to me to be an underappreciated virtue. Not every case merits the full suite of steps available under Commercial Court procedure, designed to focus on the true issue of controversy. The true issue may be well understood by the parties. As Lord Ericht colourfully put it in his talk to this conference last year (Journal, January 2019, 18), “If you want to roll up to the Commercial Court in a Mini, we won’t always insist you pimp it up into a Rolls-Royce.” In other words, case management powers will be exercised in a flexible manner to ensure proportionate costs.

A recent example of how the objective of proportionate resources may be facilitated is found in the Commercial Court guidance issued earlier this year, specifically to encourage parties to consider when it might be appropriate to dispense with some requirements of the rules. It states (para 2): “The commercial judges recognise that there may be some commercial actions which do not merit full compliance with every aspect of the guidance or in which standard procedural orders are not necessary or appropriate, whether for cost or other reasons. In such circumstances, the power in rule 47.5 can be used to allow more appropriate orders or directions to be given.”

You don’t need reminding that rule 47.5 is the power to dispense with other requirements within chapter 47.

The guidance gives several examples of how the requirements of the rules might be dispensed with:

Court steps: “(a) While the standard approach of requiring certain written documents for particular hearings (e.g. notes of argument for a debate, or witness statements and written submissions for a proof) is likely to be appropriate in very many commercial actions, there may nonetheless be certain cases in which it is not necessary or appropriate to make such an order.”

Electronic joint bundles: “(b) The court appreciates that the preparation of electronic joint bundles can be time-consuming and expensive and that these factors may not always be outweighed by the benefits of having an electronic joint bundle.”

Digitising some documents: “(c) At a more specific level, it is recognised that it may not be possible, in respect of certain types of document, to comply with the requirement in paragraph 53 of the guidance to have each document, when lodged electronically on a memory stick, put in the format of a text-searchable pdf file. Similarly, the requirement in the standard interlocutor that where witness statements make reference to productions they should be annotated with hyperlinks to the relevant document within the joint bundle may in some cases be unduly onerous or may cause disproportionate costs.”

At para 4 the guidance also explains the stage at which it is appropriate to seek any dispensation: “Accordingly, in any commercial action, if there are specific aspects of the guidance that a party wishes to have dispensed with, or standard procedural orders that are considered to be unnecessary or inappropriate, the issue should be brought before the court. If not raised at a preliminary hearing, it should be raised in the note of proposals for further procedure lodged prior to the procedural hearing. In dealing with the matter, the court will have regard to the full circumstances, including whether disproportionate costs are likely to be incurred or whether any technical or other difficulties exist.”

Other uses of case management powers

In some instances the court can be proactive in the exercise of its case management powers. My own practice, where there are relatively few volumes of productions, is to seek parties’ views on dispensing with the time and expense of digitising. Another example is to suggest that only a core bundle of the essential documents be produced, instead of voluminous joint bundles containing every production lodged. When that is done, I may dispense with digitising the core bundle, if parties are amenable.

A Commercial Court fit for the future

What would I wish for in a Commercial Court fit for the future and the society it serves? I have three wishes.

1. Co-operative pursuit of objectives

I have mentioned the core objectives pursued by the modern court: it is to do substantive justice between the parties, in an efficient and effective manner, at a proportionate cost. In the pursuit of these, one should not lose sight of the overall objective: for the court to produce sound decisions to resolve commercial disputes.

Looking to the future, I would wish to encourage a more collaborative approach with the parties and legal representatives who appear before it, to be equally pragmatic and flexible but consistent, of course, with the duties owed to their clients. To some extent, this approach is already anticipated in some of the public utterances about the Commercial Court.

So, for example, the SCTS website puts it thus: “The commercial judges insist on frank and early disclosure of relevant (but only relevant) documents. This helps to identify the strengths and weaknesses of the respective positions of the parties and facilitates settlements. An order will usually be made requiring parties and their representatives to meet to try to resolve the dispute or, at least, to narrow its scope. Where the case proceeds to a full hearing, that hearing is more formal. Detailed legal arguments will be presented or evidence heard from witnesses. The emphasis, however, remains on efficient and expeditious disposal. Parties are encouraged to agree matters which are non-contentious and to deal with contentious matters without undue elaboration.”

The key passages to stress are the first and last sentences.

The procedural rules in England define the overriding objectives of civil litigation. These correspond to the objectives I have already discussed of efficiency, effectiveness and proportionate resources while doing substantive justice to the parties. However, the English rules also impose a positive obligation on litigants to help the court achieve the overriding objectives of civil litigation. No such positive obligation is articulated in our own rules. Maybe it should be. What I wish for the Commercial Court of the future is that this objective would imbue the conduct of those who appear in its courts, whether or not there is a duty imposed in the rules.

What do I mean by this? Help the court to resolve the real dispute between the parties in the most efficient and cost-effective manner. How can this be done? Agree what can be agreed. I cannot emphasise this enough. Agreeing what can be agreed has several benefits: it can reduce the amount of court time required; it can thereby save expense; and it can also help the delivery of a quicker decision from the court.

Let me give a practical example. I mentioned the proportionate use of resources earlier; one must not lose sight of judicial resources. These are not unlimited. There are increasing pressures on writing time. And in formulating a judicial opinion it can take time to sift through, collate, summarise and articulate what turn out to be undisputed background materials, or a plethora of cases that, in truth, say much the same thing. This all takes time, and thinking and writing time is an increasingly scarce resource. Much time could be saved if parties agreed what can be agreed. Several innovations I have devised, in the exercise of my case management powers, including inviting parties in appropriate cases to produce an agreed chronology or a joint statement of agreed legal principles. This has invariably led to a saving of court time. For example, a joint chronology can be put to witnesses, too, to save them repeating evidence on these matters.

2. Wider representation of the legal profession

My second wish is that those who appear before the Commercial Court would be more representative of the diversity of the legal profession and of the wider society from which they are drawn. It remains the case, for example, that, notwithstanding many able women who have commercial expertise at the bar and in the solicitors’ branch of the profession, the vast majority of those who appear in the Commercial Court (whether as counsel or agents) are men. They are, of course, able legal professionals, but more use might be made of all the talents and expertise available in the legal profession. If “two heads are better than one”, multiple perspectives are likely to enhance the articulation of arguments and development of the law in individual cases.

3. The return of juniors’ speeches

My final wish might seem a surprising one, given what I have said about the efficient use of resources. It concerns the complete absence of juniors’ speeches in modern practice. It is almost unheard of, now, to have junior counsel’s speeches. Generally, this is explicable, given the use of notes of arguments and joint bundles of authorities. However, there are cases, particularly those which throw up exceedingly knotty or technical legal issues, or novel ones, where there would be a real benefit in juniors’ speeches.

While in such cases this may mean more court time is required, the parties have the advantage of gauging during the hearing whether the court has appreciated all the subtleties of their arguments; it enables a further degree of responsiveness by those arguing the case as the issues (or their understanding of them) develop in the course of the hearing. It also affords the judge a greater chance to formulate and pose questions, which may otherwise only be appreciated once the case is at avizandum. A more fully argued case in court, subject to more searching questions by the commercial judge, may result in a more authoritative decision which parties can accept as fairly resolving the real dispute between them, without the expense or need for review by an appellate court. In that circumstance, the court will have fulfilled its purpose in meeting the needs of those it seeks to serve.

It was said more than 45 years ago, by an eminent English judge, that civil justice is a “co-operative process to which solicitors, counsel and judges all make their contribution” (Megarry J in Barbour Settlement Trusts [1974] 1 WLR 1198). I would stress the “all” in that sentence. Of course, there are other modes of dispute resolution which play an important part in the landscape of civil justice, but the court’s fundamental role remains, which is to resolve disputes where parties are unable to. As another great, and much missed jurist, Lord Rodger, said: “after all, courts exist and judges are paid to resolve such disputes, which are indeed the life blood of the common law” (Moncrieff v Jamieson 2008 SC (HL) 1, at para 66).

We are fortunate in the Commercial Court to have some of the best and brightest legal minds instructed as counsel and solicitor advocates, and equally able instructing solicitors. The talent and dedication of those who appear before us, and those who support them, enrich the decision-making of the court.

The message I leave you with is that the Commercial Court is open for business to serve the business community. It will continue to use its case management powers flexibly and imaginatively, to resolve the commercial disputes before it, in an efficient and cost-sensitive manner.