IPEC and the Shorter Trials Scheme Compared
|Manchester Civil Justice Centre|
Since the 1 Oct 2010, intellectual property claims of £500,000 or less that can be tried in no more than 2 days have been eligible to proceed in what was previously the Patents County Court and is now the Intellectual Property Enterprise Court ("IPEC) (see New Patents County Court Rules 31 Oct 2010). The advantages of litigating in IPEC are that parties know from an early stage precisely when their trial will take place and judgment be delivered and their maximum liability for the other side's costs. The timetable is strictly enforced and the work that has to be done on case preparation is controlled.
Shorter Trials Scheme
Some of those advantages are now available for claims for more than £500,000 in the Business and Property Courts that have been issued on or after 1 Oct 2015 and can be tried in 4 days or less under a regime known as "the Shorter Trials Scheme". Cases in that scheme are managed by a designated judge who determines the issues to be tried and fixes a trial date or window that should be no more than 8 months from the date of the first case management conference. The main differences between the Shorter Trials Scheme and IPEC are that cases in the Shorter Trials Scheme are not limited to intellectual property and there are no costs caps or fixed costs in that Scheme.
Business and Property Courts
The Business and Property Courts are the Chancery Division, the Commercial Court, the Technology and Construction Court, the Circuit Commercial Court and the Admiralty Court that sit in the Rolls Building in London and the Chancery Division, the Technology and Construction Court and the Circuit Commercial Courts in the Birmingham, Bristol, Cardiff, Leeds, Liverpool, Manchester and Newcastle District Registries. I discussed the Business and Property Courts in Manchester in Launch of a Judicial Super Highway? on 12 July 2017 in IP Northwest, Leeds in The Leeds Business and Property Courts on 12 July 2017 in IP Yorkshire and Bristol and Cardiff in Better than the M4 - "The Judicial Superhighway on 2 Oct 2017 in UP Severn/Hafren. IPEC is one of the Business and Property Courts but it does not participate in the Shorter Trials Scheme for reasons that should become obvious.
The Shorter Trials Scheme is governed by the Practice Direction 57AB - Shorter and Flexible Trials ("PD Part 57AB). The practice in IPEC is ser out in Section V of CPR Part 63 - Intellectual Property Claims, Section V of Practice Direction 63 - Intellectual Property (PD Part 63) and the IPEC Guide. CPR45.31 (1) limits the costs that may be recovered on the final determination in relation to liability to £50,000. The same provision limits the costs that can be recovered on an account or inquiry to £25,000. Section 1V of Practice Direction 45 - Fixed Costs limits the costs that can be recovered at each stage of the proceedings.
"A defendant sued in the general Chancery Division is entitled to apply to have the case transferred to the IPEC, and vice versa. This should be raised in correspondence first. If the parties agree that the case should be transferred, it still requires the approval of a judge in the court in which the case is currently listed but it is likely to happen. If there is no agreement, an application to transfer must be made. This should be done, at the latest, at the case management conference. "
CPR 63.20 (1) requires a statement of case for IPEC to set out concisely all the facts and arguments upon which the party serving it relies as well as comply with all the other requirements of CPR Part 16. Consequently, CPR 63.21 modifies CPR Part 22 by requiring the statement of truth to be signed by a person with knowledge of the facts alleged, or if no one person has knowledge of all the facts, by persons who between them have knowledge of all the facts alleged. That is because the court will determine the claim solely on the basis of the parties’ statements of case and oral submissions where possibly in accordance with para 31.1 of PD Part 63.
The matters to be determined at the first CMC are very similar in both regimes. Annexe B of the IPEC Guide contains a specimen order. The court fixes a date for trial and determines the issues to be tried. It directs the disclosure to be made and the evidence to be served in accordance with a strict timetable. Similarly, para 2.38 of PD Part 57AB states that at the CMC in the Shorter Trial Scheme the court will:
"(a) review the issues;
(b) approve a list of issues;
(c) consider ADR;
(d) give directions for trial;
(e) (if it has not already been done before the CMC,) fix a trial date (or window), which should be no more than 8 months after the CMC and with a trial length of not more than 4 days (including reading time);
Unlike proceedings in IPEC, there are no costs limits or fixed costs in the Shorter Trials Scheme. The costs management provisions of CPR 3.12 do not apply unless the parties choose otherwise. Instead, para 2.57 of PD Part 57A requires the parties to exchange schedules of costs within 21 days of the conclusion of the trial to which the judge will refer to make a summary assessment in the successful party's favour under para 2.59.