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THE MERCANTILE
COURTS GUIDE
The
Guide
| 1.1 | This Guide to the
practice of the Mercantile Courts is issued with the approval of the
Head of Civil Justice pursuant to paragraphs 5.5 and 5.6 of the Mercantile
Courts & Business Lists Practice Direction.
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| 1.2 | It applies to proceedings
in any Mercantile Court.
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| 1.3 | It is concerned
mainly with case management, but also with preparation for trial,
and the conduct of trials, in Mercantile Courts. On matters not covered
by the Guide reference should be made to the CPR and the Practice
Directions supplementing the CPR.
CONTENTS
Case
Management
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| 2. | All cases proceeding
in a Mercantile Court will be subject to case management by the court.
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| 3. | The case management
procedures set out in CPR Part 29 (except for rules 29.2(1), 29.3(1),
29.6 and 29.8) and its accompanying Practice Direction (except for
paragraphs 1, 2, 3.1 to 3.3, 4.1 and 4.3 -- 4.5) apply to proceedings
in Mercantile Courts. The management procedures set out in this Guide
complement those management procedures.
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| 4.1 | A case management
conference will be held at which the court will give directions
for the conduct of the case -- normally through to trial, including
the fixing of a trial date or for the taking of steps to fix the trial
date.
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| 4.2 | If a case management
conference has not been held earlier, the claimant must apply to the
mercantile listing officer within 14 days of the service of the defence
or defences, (or, if there is a counterclaim, of the service of the
defence to counterclaim),or within 14 days after the expiry of the
time for service, to fix a date for a case management conference.
Before applying the claimant should consult with the other parties
as to any dates to be avoided and the time likely to be required for
the hearing. 4.3 The date given for the case management conference
will normally be within 4 weeks (or less) of the date on which the
application to fix a date was made.
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| 4.4 | If the claimant
fails to apply for a date for the case management conference to be
fixed, it is the duty of the other parties to do so.
CONTENTS
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| 4.5 | The claimant (or other applicant
for the date of the conference to be fixed) shall supply to the court
not less than 7 days before the date a file (the Case Management
File) containing:
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an index,
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the claim form,
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the statements of case (excluding
schedules of more than 15 pages in length),
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any orders already made,
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a short and uncontroversial summary
of what the case is about (case summary) -- see paragraph 5.7 of
the Part 29 Practice Direction,
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a list of issues if this is appropriate
given the complexity of the case.
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| 4.6 | Not less than 7
days before the date of the case management conference each party
shall provide to the court a case management information sheet
in the form set out in the Appendix hereto, and shall provide copies
to the other parties.
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| 4.7 | The claimant or
other party who has applied for the date shall also at the same time
provide to the court and the other parties a draft order setting out
the directions which that party considers appropriate. A standard
form of order is contained in the Appendix hereto.
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| 4.8 | Where any other
party intends to apply for a direction of which it is helpful to give
specific notice beyond that to be provided on the case management
information sheet, that party shall give written notice of it to the
court and to the other parties together with its case management information
sheet.
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| 4.9 | It shall be the
duty of the parties to attend the case management conference by a
representative who is properly familiar with the party's case for
the purpose of the conference. If counsel has been instructed in the
case but will not be appearing at the conference, the solicitor should
discuss the case with him for the purpose of the conference (see CPR
29.3(2)).
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| 4.10 | Any party may
by written request to the judge ask that the case management conference
be held earlier than provided for above, stating the reasons.
CONTENTS
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| 4.11 | The court will
on its own initiative arrange a case management conference if at any
time it appears appropriate.
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| 4.12 | At the conference
the court may fix a progress monitoring date or dates and make
provision for the court to be informed as to the progress of the case
at the date or dates fixed. On receipt of such information the court
may, if it seems appropriate, or if no or insufficient information
is provided, arrange a further case management conference with a view
to making such further orders as may be necessary.
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| 4.13 | In straightforward
cases the parties may submit agreed directions not less than 7 days
in advance of the conference for the approval of the judge. The judge
may then make the directions proposed, or he may make them with alterations,
or he may require the case management conference to proceed. The parties
must assume that the conference will proceed until informed by the
court that it is not required (see also paragraph 4.6 of the Part
29 Practice Direction).
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| 4.14 | Where the case
has been transferred to the mercantile list after the date for applying
for a case management conference in accordance with paragraph 4.2
above has passed, and the court has not given directions when making
the order for transfer (as provided for at paragraph 3.3 of the Mercantile
& Business Lists Practice Direction), the case must be listed
for a case management conference on the earliest possible date. It
is the duty of the claimant, or, in default, of the other parties,
to apply for a date.
CONTENTS
The
Case Management File
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| 5.1 | Paragraph 4.5 above
provides for the provision to the court of a case management file.
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| 5.2 | At the conclusion
of any hearing the court may retain the case management file or it
may return it to the party providing it (normally the claimant).
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| 5.3 | Where the file
is retained by the court, it is the duty of the claimant to update
the case management file as the case proceeds so that its contents
will provide an up-to-date picture of the progress of the case.
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| 5.4 | When any other
hearing is to take place, it is the duty of the claimant (or of the
party who has applied for the hearing) to provide the court with a
file appropriate for the hearing to the court not less than 7 days
before the hearing. This may be done by up-dating and adding to the
case management file, or by providing a fresh file containing only
those documents required for the hearing. Where a hearing is to take
place before the first case management conference, an appropriate
file shall be similarly provided.
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| 5.5 | All notices of
hearings issued by the court (other than of trials) will have attached
a notice as follows:
"Paragraphs
4.5 and 5 of the Mercantile Courts Guide require the provision
to the court of an appropriate file for any hearing 7 days before
the hearing. Failure to comply with this direction may result
in the hearing being adjourned at the expense of the party in
default. Where a case management file has been retained by the
court, this file may be added to to provide the file for the hearing."
CONTENTS
Time
Estimates
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| 6.1 | The provision of
accurate and up-to-date estimates is essential for the efficient management
of court time. Failure may result in disruption to the disadvantage
of the parties and to other court users. The court will normally take
steps to protect the interests of the other court users.
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| 6.2 | Case management
conferences and applications The claimant or other party applying
to the court for a date for a hearing must provide an estimate of
the time required. The estimate should normally have been discussed
with the other parties. If it appears to any party that the estimate
is, or has become, too short or too long, that party shall communicate
with the other parties and then with the court.
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| 6.3 | Trials It
is the duty of the parties' representatives (solicitors and counsel)
to keep under review any estimates given to the court of the likely
length of the trial, and to arrange for the court to be informed if
they change. This should not be left to the pre-trial review.
CONTENTS
Pre-trial Reviews and Pre-trial Check Lists
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| 7.1 | At the first case
management conference or at any time thereafter the court may provide
for the holding of a pre-trial review.
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| 7.2 | Not less than 7
days before the date of the review each party shall provide to the
court a completed pre-trial check list in the form set out
in the Appendix hereto, and shall provide copies to the other parties.
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| 7.3 | The parties should,
if possible, be represented at the review by the advocates who will
be appearing at the trial. Where the action is not complex and is
plainly in good order for trial, the advocate for trial need not appear
where, for example, by reason of travel unjustified expense would
be incurred. Any representatives appearing must be fully informed
for the purposes of the review.
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| 7.4 | At the pre-trial review the court
will give such directions as may be appropriate:
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for the further preparation of the
case for trial,
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as to the conduct of the trial.
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| 7.5 | .a Where no pre-trial
review has yet been provided for, each party shall provide to the
court a completed pre-trial check list in the form set out
in the Schedule hereto not less than 6 weeks before the trial date,
and shall provide copies to the other parties.
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| 7.5 | .b The court will
then consider whether a pre-trial review should be held or, if it
considers that in the circumstances no hearing is necessary, may give
directions as at 7.4 of its own motion.
CONTENTS
Timetables
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| 8. | The court may fix,
or may require the parties to provide, a timetable for the
trial, providing for speeches and for each witness to be heard within
the period set aside for the trial.
Variations
by agreement
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| 9. | CPR 2.11 provides that, subject
to the Rules, a practice direction or court order, the time specified
by a rule or by the court for a person to do any act may be varied
by the written agreement of the parties. A party must apply to the
court if he wishes to vary the date fixed for:
(a) a case management
conference;
(b) a pre-trial review;
(c) the filing of
a case management check-list, progress monitoring information, a
pre-trial check list;
(d) the trial, or
the trial period.
(2) Parties may not vary by agreement
the time set for any step in the proceedings where that would jeopardise
the proper preparation of the case for trial commencing on the trial
date.
(3) Where parties vary by agreement
the time set for any step in the proceedings, the claimant (or by
agreement another party) must write to the court informing it:
(a) of the agreed variation;
(b) of the reason why it was necessary;
(c) as to the effect of the variation
on the preparation of the case for trial commencing on the trial
date.
(4) Any variation made
by agreement is subject to any subsequent order.
CONTENTS
Orders
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| 10.1 | Unless the court
otherwise orders, all orders made in a Mercantile Court are to be
drawn up in draft by the parties (compare CPR 40.3).
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| 10.2 | The claimant shall
be responsible for preparing the draft and submitting it to the court
for sealing, unless the order was made on the application of another
party who shall then be responsible. The draft must be submitted within
3 clear days of the decision, with an appropriate number of copies
allowing for one to be retained by the court. The sealed orders will
be returned to the party submitting the draft, who shall be responsible
for service of the order on the other parties.
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| 10.3 | Orders shall be
dated with the date of the decision save for consent orders submitted
for approval, which shall be left undated.
CONTENTS
Experts
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| 11.1 | The provisions
of CPR 35 and the Practice Direction supplementing it apply to proceedings
in Mercantile Courts save that paragraphs 1.2(7) and 1.3 are replaced
by paragraph 11.2 below.
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| 11.2 | At the end of
the expert's report there must be a statement that:
(a) the expert understands
his duty to the court and has complied with that duty (see CPR 35.10(2);
(b) the expert has
read and understood Part B to the Appendix to this Guide (which
is in the same form as Appendix 12 to the Commercial Court Guide);
(c) he has complied,
and will continue to comply, with Part B at all stages of his involvement
in the case;
(d) the assumptions
on which his opinion is based are not in his opinion unreasonable
or unlikely assumptions (or, where in his opinion any assumption
is unreasonable or unlikely, that is clearly stated);
(e) the facts stated
in his report that are facts within his own direct knowledge have
been identified as such and are true;
(f) the opinions
expressed in his report represent his true professional opinion.
CONTENTS
Speeches
at trial
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| 12.1 | Subject to directions
given in the particular case, the practice at trials in Mercantile
Courts is as follows.
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| 12.2 | The opening speech
should be no longer than the circumstances require and should not
normally develop submissions. Other advocates may be invited to make
brief opening statements, outlining or clarifying their positions,
based on their skeleton arguments. The prolonged reading out of documents
in court will be avoided.
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| 12.3 | Parties may normally
assume that the judge will have read the statements of case and orders,
the witness statements and experts reports, any file of core documents
and the skeleton arguments; likewise documents included in any short
reading list.
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| 12.4 | .a The advocate
for the claimant will make the first closing speech. It is then that
submissions on fact and law should be fully developed.
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| 12.4 | .b The advocate
for the defendant will make the second closing speech.
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| 12.4 | .c The advocate
for the claimant will make the final speech. This is by way of reply
to the defendant's speech and is not a repetition of points made in
the claimant's first closing speech.
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| 12.5 | The use of skeleton arguments
in conjunction with closing speeches will depend on the circumstances.
They will often be helpful, in particular where there are complex
issues of fact or issues of law.
CONTENTS
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