Proposed new commercial hub practice direction for Northern Ireland
A draft commercial hub practice direction has been published in Northern Ireland. The practice direction will come into operation on 1 November 2021 and will replace the previous commercial hub practice direction which was introduced in 2019.
The commercial hub was established by the current commercial judge in Northern Ireland to provide for the effective management of cases which involve commercial issues. The new direction builds on previous efforts to drive improved efficiency in the courts in Northern Ireland. The key points to note are:
1 This direction will only apply to commercial actions in which proceedings are issued on or after 1 November 2021. It is assumed that the previous practice direction of 2019 will continue to apply to those actions which were issued before 1 November 2021.
2 The practise direction maintains the current system of case management, involving three key stages:
3 However, there is a new requirement for Case Information Forms to be completed before case management hearings which are to be filed electronically onto the court’s management system – Box. This should mean that parties give more advanced consideration to the requirements of the case management hearing and as such, this in turn should reduce the duration and number of hearings required.
4 The case management hearing will be a hybrid hearing with counsel in attendance, with the solicitor and client attending remotely, as required. In line with the first Early Directions Hearing, a detailed Case Information Form must be provided seven days in advance, along with copies of key documents. Sanctions may be applied in the event that the claimant fails to comply with this requirement.
5 At the case management hearing, the court will consider whether the case should be fast tracked or prioritised within the hub, and will identify if the case could benefit from limited or no discovery. The court will also consider if it is appropriate to have a split liability/quantum hearing or whether any preliminary hearing could deal with some of the issues in dispute.
6 The practise direction also formalises a system which has developed organically - setting case management directions administratively where they have been agreed by the parties. This not only reduces the need for in-person hearings but also potentially saves costs.
7 In common with its predecessor, the practise direction provides for cost sanctions in the event of non-compliance. Arguably, as the obligations on practitioners under the new direction are enhanced, there is a greater risk of a costs sanction being imposed.
8 The direction repeats the content of the 2019 direction in relation to discovery (disclosure), meaning it is not proposed to further refine the approach to discovery in this jurisdiction. Instead, the parties are encouraged to focus on a collaborative approach to achieve effective savings in terms of time and costs. It continues to be the case that where a party insists unilaterally on full discovery, that party may be required to pay for the cost (or part of the cost) of the discovery process. However, it appears to remain the case that it will only be at the conclusion of a case when the judge will consider if the discovery was indeed useful and whether any cost sanction is appropriate. Insurers may prefer the court to take a more proactive approach to limiting discovery in appropriate cases.
9 The pre-trial case management conference will focus on readiness and logistical arrangements for trial. The key change is that the trial bundles are to be provided to the court electronically. In theory, this should reduce the administrative burden on solicitor firms, and therefore should help to reduce costs.
As ever in Northern Ireland, the application of the direction and any sanctions will be at the discretion of the commercial judge.
Many of the provisions of this new direction have been in place for some time under the 2019 direction, but are often not complied with by the parties. The publication of this updated direction may indicate an intention to impose the contents more rigidly.
There is a real focus on the parties working collaboratively, providing detailed information in advance of case management hearings, and reducing the need for in-person hearings. As such, this provides a potential cost saving for insurers.
Importantly, the direction does not touch upon parties’ pre-action conduct. We believe the failure to address the current pre-action protocol for commercial action presents a missed opportunity to review the life-cycle of claims and improve pre-action behaviour.
Kennedys will respond to the proposed practise direction welcoming the steps taken to improve efficiency, but encouraging the court to further consider refining and building upon the current pre-action protocol.