Through our recent experience, a rising workload in the Commercial Division of the County Court appears to have prompted the Court to update some of its case management behaviour. As practitioners, this prompts new considerations for ensuring matters are run smoothly through the Court.
Practitioners will recall that following the repeal of the $200,000 jurisdictional limit in the County Court, there was an increase in the number of commercial cases filed.
Between 2021-2022, 1,355 cases were commenced in the Commercial Division. 1,299 were finalised. As per the Court’s annual report, this finalised figure was down 28.4% on the previous year. One theory for this may be that the backlog of cases following Covid-19 led to fewer cases being finalised in the 2021-2022 year.
But whatever the reason, the Court’s response has likely been to seek to improve its percentage of cases finalised, bringing changes to its preferences in case management to achieve this.
This article will highlight some of the recent practices we have observed in the Commercial Division of the County Court, and what practitioners should take away from these observations.
Three recent trends in the Commercial Division of the County Court:
a preference for oral evidence of witnesses;
less leniency for parties who fail to meet deadlines; and
a stronger reliance on the Commercial Division Omnibus Practice Note PNCO 2-2022 (Practice Note).
1. Preference for oral evidence
Experienced commercial practitioners will be well-versed in the varying suitability of long witness statements versus short outlines on a case-to-case basis.
In the County Court’s Commercial Division, witness statements / affidavits have long been favoured as the chief form of evidence from a witness.
Short outlines, which have only become commonplace more recently, instead require the witness to give their evidence ‘in the box’. However, it seems this has now become the Commercial Division’s default preference for witness evidence.
The Practice Note (defined above) states at paragraph 143:
“Witness statements are not ordinarily required in the Commercial Division and will only be ordered where provided by this practice note in relation to a specialist list or where the Court is satisfied that the provision of witness statements will further the overarching purpose…”
A reliance on short outlines (which may be up to three pages long) should encourage practitioners to hone the skill of brevity.
Attention should equally be given to witness preparation. Practitioners do not need reminding that witnesses cannot be coached, but this does not mean that witness conferences should refrain from posing questions that will adequately prepare the witness for giving evidence in open Court.
2. Less leniency with Court deadlines
As practitioners, we know that meeting Court deadlines should always be the default intention and priority. However in practice, Court deadlines can be missed for a number of reasons. Sometimes opposing solicitors induce delay when providing consent orders or joint documents. Sometimes clients do not provide timely instructions.
Though if practitioners anticipate that a Court deadline will be missed, the expected course of action is to inform their opponents and the Court. This enables the Court to plan for delay, and in some cases offer leniency with the relevant deadline.
Now, given the rising workload of the Commercial Division, it has become increasingly difficult for the Court to manage its cases and resources. In recent times, if practitioners fail to update the Court as to any potential delays, the Court has (rightfully) enforced its deadlines.
For example, if the deadline for the filing of a pre-trial information form is missed, the Court is empowered to vacate the trial date, unless practitioners can explain why the Court deadline was missed. With the current volume of cases in the Commercial Division, it may be that the proceeding is not relisted until the following year.
3. Stronger reliance on the Practice Note
Practice notes are valuable resources for practitioners, regardless of the jurisdiction. Not only can practice notes provide helpful information, but Judges and registrars will also expect practitioners to be aware of the contents of a practice note and the procedures required by the Court.
This is particularly relevant in the Commercial Division of the County Court, where the Practice Note (as defined above) has modified the Court’s practices compared to what exists in the County Court Civil Procedure Rules 2018 (Rules).
For example, if a party has failed to file of a notice of appearance within 10 days, Order 21.01 of the Rules provides that “the plaintiff may enter or apply for judgment against that defendant.”
However, the Practice Note suggests otherwise. Paragraph 348 states:
“Plaintiffs should not ‘snap on’ judgment immediately after the time for the filing of a notice of appearance or a defence has passed. If a notice of appearance has been filed, the Court expects that the plaintiff will warn the defendant(s) in writing before making an application for judgment in default of defence.”
The Practice Note at paragraph 349 also suggests that if the defendant requests more time to file, the Court is likely to provide a reasonable extension except for in extreme circumstances.
In this way, the Practice Note illustrated, until very recently, a divide between the Rules and what the Commercial Division considers to be best practice. It is worth noting that a ‘Form 21A – Notice of intention to enter or apply for judgment in default of defence’ now must be served, providing a defendant a further 7 days.
In the past, Court orders would be more descriptive. Now, it is more common to see the paragraph number of the Practice Note quoted in Court orders (usually referring to a replaceable order), prompting practitioners to seek out the appropriate section of the document. For example, in the past an order for discovery may read as follows:
1. By [date], each party must make discovery (including full inspection) of the following documents:
(a) each document referred to in the party’s pleadings or the particulars of the pleadings;
(b) any document which may be produced by the party at the trial during examination-in-chief, cross-examination or re-examination;
(c)any document which may harm the party’s case;
(d) any document or class of documents which any other party reasonably requests the party to discover.
Contrast the above with how a more recent discovery order may read:
1. The parties must make discovery of documents in accordance with Replaceable Orders G.10A.
2. By [date], each party must make discovery by affidavit of documents and provide contemporaneous inspection in accordance with Replaceable Orders G.10B.
This confirms that practitioners must be aware of, and rely upon, the Practice Note.
With the rising workload of the Commercial Division of the County Court, practitioners should, wherever possible, aim to meet deadlines, or otherwise inform the Court of any potential delay.
In respect of preparing your case, ensure you understand the intricacies of witnesses giving oral evidence.
If you practice in the Commercial Division of the County Court, it would be prudent to familiarise yourself with the Practice Note.