Resolving Disputes: the changing face of litigation
Posted on: 20/08/2020
In England, there are two systems for collecting debt and having disputes resolved. Parties can either use the courts or various arbitration forums. Certain sectors have a preference as to which system they use.
Owners and charterers of ships around the world, carrying cargo, prefer to have their disputes determined by commercial arbitrators, as do buyers and sellers of hard and soft commodities. Apart from having the benefit of being a private and confidential service it is much easier to start an arbitration, than say court proceedings and in most cases with little financial outlay. Arbitration awards are also much easier to enforce across the world. As many shipping and commodity companies have complex corporate structures often involving off shore jurisdictions this is an essential component. London retains its stronghold as the pre-eminent place in the world in which to arbitrate maritime disputes.
Other sectors have a hybrid approach to arbitration and court proceedings. For example, the British International Freight Association latest terms and conditions give a freight forwarder a choice on whether to use arbitration or court proceedings.
Many UK based companies involved in manufacturing or production or exporters tend to lean towards having their disputes resolved through the English Courts. In England there are various tiers of courts that can be used for debt collection or for having a dispute resolved such as the mercantile court or the commercial court which includes the London Circuit Commercial Court which deals with shipping and transport claims. Some of the courts are very specialised whilst others offer a wider service to cover a plethora of different types of claims.
Covid 19 has brought on a number of changes to the way in which the Courts are dealing with claims and hearings. In addition, the Commercial Court in London is running a number of pilot schemes which will no doubt be rolled out to other courts in due course.
The court system particularly those courts used for commercial cases between businesses has been affected in a very positive way by Covid-19. The courts and the Judges who service them have been quick and enthusiastic to embrace the use of technology to keep cases moving and to ensure that backlogs are not created by adjourning hearings.
- It is now the norm for as many hearings as possible to take place virtually. This includes applications before a Judge as well as the actual trial. This includes cases where witness and expert evidence is being given.
- The courts will also accommodate hybrid hearings. These are hearings where perhaps both of the parties have some people in court such as the legal team, but with other parts of the team such as witnesses giving evidence virtually. Evidence at trial is often led by barristers and many of them feel that you can get a better sense of a Judges reaction to evidence if you are in the physical court
- The court will organise the hearing using various software packages. There appears to be no consistency in the use of those packages. We have been involved in trials where the court has used SKYPE for business as well as Microsoft teams. Large scale trials with many users on the same platform does not always run smoothly but the Judges will stop a trail and change software packages if they feel here are problems with communication.
- Specific instructions are being issued by the courts to the parties on the use of the platforms.
- In some instances courts may decide that the platforms might not accommodate evidence being given by a large number of witnesses or experts and they offer a virtual hearing subject to limitations i.e. no more than 3 witnesses. This is no doubt based on the Judges own experience of virtual trials.
- It is now usual and expected that witnesses and experts will not be required travel to a specific court but will be entitled to give evidence virtually.
- In addition, bundles are now being produced electronically which all parties have access to without the need for a paper bundle of paperwork. There is also more focus on the size of those bundles.
- There also seems to be much more flexibility on which court will actually oversee the hearing. The fact that legal proceedings have been started in one court does not necessarily mean that court will handle the trial. We have some direct experience of that during lockdown in July, when our clients were told that their case which had been issued in the London Commercial Court would have to take place in the Manchester Commercial Court, if we wanted to keep the trial date in place. As everybody was geared up for a 5 day hearing our clients took up that offer with alacrity.
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