Strengthening The Commercial Court


Background ? collapse of the "Mega Trials"

In the aftermath of the collapse of the BCCI and Equitable Life litigation, the Commercial Court was subjected to unprecedented criticism. Both cases brought public attention to bear on the court's procedures. The BCCI case collapsed after the Claimants abandoned their 13 year litigation on the 256th day of trial (excluding the 63 days taken up by interim hearings). The defendant's costs alone were estimated to be approximately 80 million. Tomlinson J who heard the trial made the following observation in his judgment on costs following the discontinuance of the claim:

"I became so concerned about the case that I decided both to consult and to warn the Lord Chief Justice about it. I told the Lord Chief Justice, then Lord Woolf, that the case was a farce ? I warned the Lord Chief Justice that I feared that the case had the capacity to damage the reputation of our legal system ? The Lord Chief Justice and I discussed whether there were any measures which might be taken either by me or by both of us together in order to persuade the liquidators of the folly of their enterprise. I take full responsibility for the conclusion, which was essentially mine anyway, that there was nothing which could usefully be done?"1

The Governor of the Bank of England added to the weight of criticism at that year's Lord Mayor's Banquet: "A system that is powerless to prevent a case so hopelessly misconceived continuing for thirteen years requires examination."2 Other commentators have referred to the case as a "colossal wreck".3

Long Trials Working Party

In the wake of such public attention, the Commercial Court Long Trials Working Party under the chairmanship of Atkins J was set up. The Working Party was given an extensive remit to "consider all aspects concerning the management of heavy and complex cases in the Commercial Court." It was made up of members of the judiciary, barristers, solicitors and other users of the Commercial Court. It met eight times in 2007 and published its 81 page report on 6 December 20074.

The Working Party's proposals and recommendations were adopted by the Commercial Court User's Committee and are currently being put into practice for a trial period between 1 February 2008 and November 2008.5 Litigants should therefore be aware of the key changes, aims and objectives as these may very well apply to their case.

The Key Recommendations

The overarching point to emphasise at the outset is that...

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