Active Case Management
All trials and interlocutory applications are heard by a High Court Judge or Deputy High Court judge designated to the Court on the basis of their expertise. There remains a strong emphasis on active judicial case management, with Commercial Court judges presiding over all aspects of the dispute from the initial establishment of the court’s jurisdiction through to post-trial issues. An example of the Court’s pro-active approach to case management can be seen in its approach to test and grouped cases – most recently in relation to COVID cases (see below).
Urgent Interim Relief
The Commercial Court has played a central role in the development of urgent interim relief in commercial proceedings, principally ‘freezing’ injunctions (to prevent the dissipation of assets prior to judgment or prior to the enforcement of a judgment) and anti-suit injunctions (to stop a party taking steps to pursue proceedings in another jurisdiction in breach of contract). Both forms of relief have been developed in cases before the Commercial Court.
The possibility of seeking urgent relief in aid of a pending claim contributes to the popularity of the Commercial Court as a forum for commercial litigants. Commercial Court judges are able to hear urgent applications for interim relief at short notice and, where appropriate, grant such injunctive relief. The Commercial Court Guide (PDF) has a specific section (F.14) setting out detailed guidance about such applications.
Shorter and Flexible Trials and Expedition
The Commercial Court seeks to adapt itself to the needs of its users and understands that faster resolution is often desired by litigants. To that end, it has a Shorter Trials Scheme and a Flexible Trials Scheme (external link) that are designed to allow trials to be heard more quickly and in a manner that is appropriate for the specific case at hand.
The Shorter Trials Scheme is in place for cases which can be heard in no more than four court days and is intended to determine disputes within a year of issue of the claim.
The Flexible Trials Scheme is intended to allow parties to adapt trial procedure to suit the case at hand. For example, parties might agree that certain issues do not require oral evidence. This can shorten the time frame to final determination.
In addition to these dedicated schemes, court users can apply to seek expedition of their case if they consider this necessary. The basis upon which requests for expedition are considered is explained in detail in the Commercial Court Guide (PDF) at F3.2 and J1.3.
Test and grouped cases (including COVID-19 BII cases)
The Commercial Court seeks to actively manage suitable sets of cases either via a test case or a sub-list of cases where linked cases can be managed together. Input from parties who consider that they have a case suitable for such treatment is welcomed.
COVID-19 BII cases
[Solicitor details are given below for live cases to enable parties with a potential linked case to contact those involved in current cases with the same issues.]
Following the FCA test case (FCA v Arch [2020] EWHC Comm 2448, [2021] UKSC 1 (external link)) the Court is seeking to monitor other COVID-19 Business Interruption cases under a sub-list directed by Butcher J (with Cockerill J’s support).
It is currently aware of seven live cases in that category. The court will not publish details of the commencement or progress of such cases until there has been a public hearing in each case.
In Corbin & King v Axa, CL-2021-000235 (external link) (solicitors Edwin Coe LLP for the Claimants, DAC Beachcroft for the Defendant) an expedited trial took place at the end of January 2022. The main issues included how a Non Damage Denial of Access cover is to be given effect to in light of the decision of the Supreme Court in the FCA test case. Judgment was handed down on 25 February 2022 ([2022] EWHC 409 (Comm)). Permission to appeal to the Court of Appeal was granted but is not being pursued.
Three further cases, each arising out of the use of the Marsh Resilience wording, raise at least some of the same issues, and while not being consolidated or heard together, are being managed in a coordinated way. In one of those cases, Stonegate Pub Company v MS Amlin, CL-2021-000161 (solicitors Fenchurch Law for the Claimants and DAC Beachcroft for the Defendants) directions have been given for an expedited trial of certain issues to commence in June 2022. In Greggs PLC v Zurich Insurance PLC, CL-2021-000622 (solicitors CRS for the Claimant and Clyde & Co for the Defendant), a trial of preliminary issues will take place in the first week of July 2022. In Various Eateries Trading Ltd v Allianz, CL-2021-000396 (solicitors Mishcon de Reya for the Claimant and DAC Beachcroft for the Defendant), a trial of preliminary issues will take place in the second week of July 2022. Each will be heard by the same Judge. A principal issue in each is as to aggregation, and whether the losses claimed constituted a Single Business Interruption Loss, or how many Business Interruption Losses there were. Another principal issue in Stonegate v Amlin is whether a sub-limit in respect of Additional Increased Cost of Working applies in the aggregate or to each Single Business Interruption Loss.
In a further case, Smart Medical Clinics Ltd v Chubb European Group, CL-2021-000472 (solicitors Freeths for the Claimant and Clyde & Co for the Defendant) a CCMC was heard in January 2022, and directions have been given for a trial of issues other than quantum. The main issues include the extent to which access to the Claimant’s premises was restricted, whether members of the Claimant’s staff contracted COVID-19 at the Claimant’s premises, whether COVID-19 was a notifiable disease as defined in the policy, and whether for there to be cover under a ‘Restrictions on the use of the Premises’ clause discovery of the causative agent had to take place at the Premises.
Other COVID-related cases
The Court is also managing, as part of the COVID-19 sub-list a further insurance (though not BII) case, namely World Challenge Expeditions v Zurich, CL-2021-000322 (solicitors Fenchurch Law for the Claimant and Clyde & Co for the Defendant). A CMC was heard in this case at the end of January 2022. The insurance at issue is a Corporate Personal Accident and Business Travel insurance and involves a claim in respect of the refund of deposits by the Claimant to customers who cancelled trips due to the pandemic. Issues include the construction of the insuring clause, as to whether there are relevant estoppels, and as to the application of an Event Limit clause. Directions have been given for a trial not before early 2023.
The Court encourages parties to other cases involving COVID-related issues (including s. 13A Insurance Act) to identify them to Commercial Court Listing, for the Court to consider whether any further coordinated case management is appropriate.
Italian Swaps cases
The Court is currently jointly case managing four linked cases dealing with swaps transactions entered into by an Italian region. There are other cases involving other regions and communes which raise similar issues. The Court is keen to ensure that such cases are identified to ensure the most efficient case management of this cohort of cases. A lead case determining a number of important issues was the subject of a judgment in Deutsche Bank AG London v Comune di Busto Arsizio [2021] EWHC 2706 (Comm).