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Sustainability is rightly coming to the forefront of the minds of businesses and institutions, and not a moment too soon. A significant part of that thinking is around the environmental impact and efficiency of the way in which business is conducted.
The realm of commercial litigation is in no way exempt from the need to be more environmentally sustainable. That is hard in a world full of duplicated court bundles, multi-jurisdictional witnesses and servers groaning under the weight of disclosure exercises. But there is increasing enthusiasm from all sides to now properly grapple with these issues and see if positive change can be made.
The judgment of Mr Hugh Sims QC (sitting as Deputy Judge of the High Court) in Brooke Homes (Bicester) Limited V Portfolio Property Partners Limited And Others ( EWHC 3015 (Ch)) was published on 11 November 2021, a High Court Chancery Division matter in the Property Trusts and Probate List.
The case concerned a dispute about an eco-town development in Bicester. The claim was for specific performance for sale of part of the development land designated for the agreed zero-carbon strategy, or alternatively damages in excess of £500m. The claim for specific performance failed and a smaller level of damages was awarded against one of the Defendants. But it is the second post-script to the judgment that makes Brooke Homes of particular note.
The Judge’s second postscript made a general point around the interpretation of Rule 1.4 of the Civil Procedure Rules (CPR), which states that the Court must further the Overriding Objective (to deal with cases justly and at proportionate cost) by actively managing cases. A list at CPR 1.4(2) (a) – (l) provides examples of what active case management includes, with CPR 1.4(2)(l) being “Giving directions to ensure that the trial of a case proceeds quickly and efficiently”.
Commenting directly on that provision, the Judge stated that “efficiently” can include the consideration of carbon reduction efficiency, albeit he noted that it would not be the only factor and, taking a case by case approach the overall decision would need to be made in order to deal with cases justly. The Judge went on to praise the parties for conducting the matter efficiently as a remote trial, but noting he preferred the term “e-trial” or “e-hearing” and stated the default position in the proceedings, absent any directions to the contrary, would be for further hearings in the matter to be conducted the same way.
This is certainly an intriguing development. Brooke Homes is the first reported judgment that, albeit via a postscript, seeks to directly weave in environmental sustainability to the Court’s obligations and approach to case management as set out in the CPR. It opens the door for parties to seek to agree or argue for sustainability considerations to be taken into account at case management hearings, for example, when considering directions up to trial or the approach towards an interim application or a disclosure exercise. Whilst it is open to debate how precisely “carbon reduction efficiency” should be defined, and of course carbon emissions are only one part of the steps required to tackle the climate crisis, it is without doubt a positive step in the right direction and, importantly, a step unilaterally taken by the Court itself. It is hoped that Court users take the Brooke Homes judgment postscript and build off it to secure their own case management directions with due consideration for the environmental impact of conducting litigation.
It is widely agreed that the COVID-19 pandemic has accelerated Court users’, and the Court’s, adoption of technology to conduct e-hearings (to adopt Mr Sims QC’s nomenclature). Both the Commercial Court and the Chancery Division are looking at extending the use of e-hearings to embed them in general use post-pandemic, although with a recognition that certain circumstances, such as cross examination of witnesses at trial, may justify some face to face hearings continuing. The emissions saved via e-hearings, from the absence of travel and the provision of electronic bundling for example, is not to be underestimated. But there is more that can be done, for example through agreement between the parties as to how best to conduct disclosure exercises or service of documents.
It is not just the Courts or legal professionals who are coming around to considering how they can conduct litigation more sustainably. In commercial litigation, many clients of law firms will perhaps be even further along in their thinking, with large ESG budgets and ambitious environmental performance targets and strategies freshly put in place. That client pressure will help to drive the positive change we all want to see. And who knows, perhaps one day the CPR’s Overriding Objective itself will be amended to mandate dealing with cases justly, at proportionate cost and in an environmentally sustainable manner.
TLT has an ambitious environmental sustainability strategy, centred on achieving net zero by 2025. The firm is also a signatory to the Greener Litigation Pledge and is actively identifying and implementing ways in which it can conduct its own business on a genuinely sustainable footing. If you would like to know more, please contact Jack Hargreaves, Associate, in TLT’s Financial Services, Disputes and Investigations team, or Shelley Bishop, Legal Director Professional Support Lawyer in the Commercial Dispute Resolution team.
13 December 2021