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A new Commercial Hub Practice Direction, which came into effect on 1 November 2021 and replaces the first Practice Direction of 29 April 2019, is designed to further streamline the commercial litigation practice and procedure in Northern Ireland and assist in how the business community and their advisors approach legal actions around commercial disputes.
In this update we look at the background to the Commercial Hub in Northern Ireland, outline the changes to commercial court practices which came into effect in April 2019 and consider the changes now arising from the new Commercial Hub Practice Direction.
The first Commercial Hub Practice Direction of 29 April 2019 changed the commercial litigation landscape in Northern Ireland with the creation of a new Commercial Hub to serve the commercial community across Northern Ireland with a commitment to resolving disputes efficiently and cost effectively.
Any case going to trial in the Commercial Hub would be subject to 3 key case management stages to replace the existing "review” system and they were:
Early Directions Hearing;
Case Management Conference;
Pre-trial review (unless the parties agree and Judge is satisfied that there is no requirement).
The 2019 Direction suggested that three case management hearings should be sufficient to push a case on to trial if directions were followed. Any further hearings needed to be requested in writing and may have had costs consequences. All parties to an action and key persons, including Counsel and solicitors, were required to attend Case Management Conferences.
The new case management process brought with it a new timetable for commercial litigation with potentially tighter deadlines and any requests for extensions were to be made before time limits expired.
With Early Directions Hearings to take place within 3 weeks of the service of the Writ of Summons or Originating process, parties initiating commercial action needed to be prepared to promptly discuss areas such as costs, discovery, expert evidence and ADR.
There were also implications for Discovery with the parties being encouraged to agree a discovery plan before the Early Directions Hearing and to consider how appropriate different types of discovery may be, including no discovery. For the first time, electronic discovery was being promoted with search words and / or predictive coding where appropriate.
Further where one party insisted on full discovery which was later shown to be of limited assistance in the resolution of the dispute there was the threat of costs implications against the party insisting on that discovery, regardless of the outcome of the dispute proceedings.
Prior to April 2019 Commercial List actions were heard at the High Court in Belfast but the 2019 Direction allowed for the Hub to sit anywhere in Northern Ireland, where a suitable venue was available.
The 2019 Direction also made it clear that practitioners are expected to comply in full with the Direction and sanctions including costs orders, dismissal, or the striking out or limiting of claims, defence and/or evidence may be imposed for failure.
Finally, BOX, an on-line application for document storage and access which is used by several Northern Ireland Civil Service departments and agencies was promoted for use by the Commercial Court. BOX was established for use within the Commercial Hub to enable practitioners to file documents electronically in accordance with the requirements of the 2019 Direction.
The new Direction came into force on 1 November 2021 and replaces and revokes the April 2019 Direction. It applies to commercial actions in which proceedings have been, or are, issued before, on or after 1 November 2021.
The new Direction reminds practitioners that the objective of the Commercial Hub is to serve the commercial community across Northern Ireland with a commitment to resolving disputes efficiently and cost effectively.
The new Direction now provides the following new directions for litigating parties in the Commercial Hub:
the parties must complete a Case Management Form collaboratively at each stage of the case management process and upload that Form to Box in advance of the next case management hearing. Where the Form cannot be completed collaboratively by the parties because they cannot reach a consensus, then the Form should be completed and lodged individually by each party for consideration by the Judge;
the Judge now explicitly has the power to make directions administratively at any stage throughout the case management process based on the papers where they have been agreed between the parties;
the Court will deal with the Early Directions Hearing administratively (on the papers/written submissions) and therefore the parties must not attend Court;
Case Management Conferences will normally be hybrid hearings which all parties and all key persons are required to attend. Counsel with carriage of the case, together with Senior Counsel (if instructed), should appear in person in court, and the solicitor with carriage of the case along with the client, may appear remotely if required;
there is now a duty on each side to immediately draw to the Court’s attention if there is likely to be a breach of any time limit set out in any directions provided by the Court and /or there is a breach of any time limit contained in any court direction. An explanation must then be provided as to why the defaulting party cannot comply with the time limit(s) set by the Court;
the inclusion of cases in which a party or parties are unable to agree directions to the list of those cases which may be eligible for an urgent or bespoke Early Directions Hearing;
a process for uploading Skeleton Arguments and all trial bundles to BOX, with hard copies no longer required.
It is clear from the new Direction that the use of technology, either to facilitate the use of remote or hybrid hearings, to facilitate the use and exchange of e-Discovery or for the filing of Court pleadings, Skeleton Arguments or Trial Bundles is now embedded in the practice and procedure of commercial litigation practitioners in Northern Ireland and is here to stay.
We have a team of commercial litigation experts who have dealt with a significant volume of Litigation, ADR and Mediation.
We also have a team of disclosure experts who understand the changes in the new regime and the opportunities this might present.
For more information on how TLT can help your business, please contact Fergal Maguire, Partner and member of the Belfast litigation team.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at November 2021. Specific advice should be sought for specific cases. For more information see our terms & conditions.
03 November 2021