Dispute resolution: Modernising the Business and Property Courts

In recent years, the Business and Property Courts – which decide specialist business and other civil international dispute resolution and business cases in England and Wales – have demonstrated a strong commitment to innovation. They have adapted to the evolving needs of the legal landscape through various initiatives. This drive to modernise is evident in new pilot schemes on disclosure and witness statements, as well as the increasing use of virtual hearings following Covid. 

Disclosure and witness statements

One of the most significant changes has been the introduction of new pilot schemes aimed at improving the efficiency and effectiveness of the courts. The Disclosure Pilot Scheme, which began in 2019 and has since been codified into Practice Direction 57AD of the Civil Procedure Rules, seeks to streamline the disclosure process. It aims to make it more proportionate and less burdensome for parties. This scheme encourages a cultural shift towards more effective and economical litigation practices, ensuring that London remains a preferred destination for businesses to resolve both domestic and international commercial disputes.

Similarly, the Witness Statement Pilot Scheme, introduced in 2021 and codified in Practice Direction 57AC of the CPR, aims to improve the quality and reliability of trial witness statements. By providing clearer guidance on the preparation of witness statements and emphasising the importance of accuracy and relevance, this scheme has enhanced the overall quality of evidence presented in court.

Impact of the Covid pandemic

The pandemic accelerated the adoption of virtual hearings, which have become a staple of the Business and Property Courts. The ability to conduct hearings remotely has ensured the continuity of justice during challenging times. Moreover, it has highlighted the potential for greater flexibility and accessibility in the legal system. Virtual hearings have proven to be an effective means of managing cases, reducing the need for physical attendance, and allowing for greater participation from parties located in different jurisdictions.

Insights from the LSLA event

The London Solicitors Litigation Association recently hosted an event where Mr Justice Foxton, Mr Justice Green and Mr Justice Waksman spoke about the Commercial Court, the Chancery Division, and the Technology and Construction Court, respectively. The judges provided valuable insights into ongoing efforts to innovate within the Business and Property Courts.

Mr Justice Foxton highlighted the significant increase in the number of claims issued and hearings listed in the Commercial Court in recent years. For instance, the number of claims issued in the Commercial Court alone has risen from 864 in 2017/18 to 1,192 in 2023/24. This increase underscores the need for continued innovation to manage the expanding workload effectively.

One notable area of growth across the Business and Property Courts has been the use of electronic filing systems, such as CE-File. The introduction of CE-File has revolutionised the way cases are managed, leading to a substantial increase in applications, from 4,000 within a year of its arrival to over 5,000 in recent times. This shift towards digital processes has improved efficiency and facilitated better access to case information for all parties involved.

Mr Justice Foxton also emphasised the evolving nature of the types of hearing conducted in the Commercial Court. While the overall number of hearings has decreased slightly, the proportion of trials has increased, with more complex and lengthy hearings becoming a larger part of the court’s workload. For example, the percentage of trials lasting over four weeks has risen from 1% in 2016/17 to 20% for the Commercial Court alone in 2023/24.

In looking at the types of case passing through the Commercial Court, it was noted that the international nature of the court’s work has remained a constant, with a significant proportion of cases involving international parties. Arbitration continues to be a key component of the court’s work, with the number of arbitration-related claims increasing significantly. This growth reflects the ongoing importance of London as a leading seat for international arbitration and the court’s commitment to supporting this role.

Injunctions, particularly freezing and anti-suit injunctions, remain a major feature of the court’s work. The number and types of injunction have evolved, with new forms such as anti-enforcement and anti-recognition injunctions emerging in response to the changing legal landscape. The court’s ability to adapt to these developments is crucial in maintaining its effectiveness and relevance.

Conclusion

Looking ahead, the Business and Property Courts are poised to continue their trajectory of innovation. The upcoming 50th anniversary of the first Mareva Injunction provides an opportunity to assess the current state of this important legal tool and explore potential improvements. Additionally, the 10th anniversary of the Financial List will prompt further reflection on how to maximise its potential and better serve the needs of the financial sector.

The Business and Property Courts have shown a remarkable determination to innovate and adapt in recent years. Through pilot schemes, the adoption of virtual hearings and the ongoing evolution of their processes, these courts are well-equipped to handle the complexities of modern litigation. The speeches made by the judges at the LSLA’s recent event underscore the importance of these efforts and highlight the court’s commitment to ensuring that London remains an attractive venue for international dispute resolution.

Charlotte Hill is a committee member of the London Solicitors Litigation Association and a partner at Penningtons Manches Cooper