We are officially on the fast track to 1 September, and time to talk about the Fast Track Hearing List within our brand new, amalgamated Court.
In past years, some difficulty has been caused by the same timelines and requirements (and, by implication, cost consequences) being incurred irrespective of the nature of the matter or the issues that are in dispute. Whilst the flexibility afforded to matters by the less adversarial style court rules and the very nature of the Federal Circuit Court was intended to avoid this – the different approach of individual Judges has led to a lack of certainty as to whether one could realistically aspire to any fast track style hearing.
Under the new Central Practice Direction, there is no provision for the Fast Track Hearing List. The Court, at its discretion, can refer a matter to the fast track hearing list at any point prior to the allocation of a final hearing date, and normally after dispute resolution has failed to result in an agreement. In determining if a matter is a suitable one for the fast track hearing list (which by its nature is intended to allow for resolution much quicker than the ordinary process), the Court will think about:
- Have the parties been unable to resolve the matter despite making a genuine effort to do so?
- Have the parties clearly identified the issues in dispute between them both? The issues need to be discrete and/or of limited scope.
- Have reports from experts been obtained, and every effort made to requisition those experts and/or conference with them with a view to reaching an agreement?
- Can the parties agree that the matter can be determined on the basis of the Affidavit evidence without the need for cross-examination? This is a big requirement and really means that the Fast Track List is not for matters where there are factual disputes (and one party needs to be judged more reliable than the other), but rather fundamentally different views as to how the law should be applied to a particular (largely agreed) factual scenario.
- The parties also need to prove that the matter can be determined on the basis of written submissions of no more than 10 pages setting out the relevant contentions as to law and fact, or oral submissions not exceeding one hour in respect of each party.
- The parties also need to be in a position to present their case on the provision of 28 days’ notice of the hearing date, and the parties must consent to the use of short-form Reasons for Judgment.
If all of the above are satisfied, then the matter can be referred for fast track hearing and potential resolution within, potentially, a very short period of time.