Opinion

Commercial practitioners are awaiting the completion of the business case for a new commercial court, which was commissioned for the Lord Chancellor’s Department. While there is little point in speculating on the content, the current focus on the role of the commercial, admiralty, technology and construction, and companies courts renders this an appropriate moment to sound a note of caution against undue reliance on improvements in accommodation and technology as panaceas for perceived ills in these specialist commercial courts.

There can be no question that improvements in court accommodation are required if the specialist commercial courts are to continue as centres of excellence. For example, the logistical problems that had to be overcome to provide a courtroom with adequate space and facilities to accommodate the recently concluded Reopened Formal Investigation into the Loss of the MV Derbyshire were formidable. All necessary facilities – including banks of large screens for witnesses and the public and individual monitors for the judge, counsel and solicitors to view a vast array of still, video and computer-rendered images, LiveNote terminals for the judge, counsel and solicitors and side rooms with telephones, facsimiles and computing facilities for each of the six legal and technical teams involved – were made available, but only at substantial cost and through the enormous efforts of the judge, the court service and the Department of the Environment, Transport and the Regions (DETR). This particular investigation was perhaps unusual in that it required a consideration of evidence which was embodied in a wide variety of media and it also engendered substantial public interest. But it was not unusual in terms of the volume of evidence considered, the number of witnesses called or the number of parties represented. Yet the specialist commercial courts are still often confined to cramped and ill-equipped accommodation.

In contrast, there can be no doubt that recent technological advances have changed for the better the lives of judges, practitioners and clients of the specialist commercial courts. For example, in heavier cases, the thought of spending hours trawling through counsels’ and solicitors’ notebooks for highlighted or annotated passages of barely legible script, or even reviewing similar passages in printed transcripts, rather than the minutes spent producing a series of LiveNote reports when preparing final submissions, no longer bears contemplation. However, there is a real danger that in placing increasing reliance on technology, commercial practitioners will lose sight of their essential role in the administration of justice. For example, the current deluge of online legal databases has recently led one judge recently to warn: “Now there is no pre-selection. Large numbers of decisions, good and bad, reserved and unreserved, can be accessed. It seems to me that the common law system… stands the risk of being swamped by a torrent of material.” (Michaels v Taylor Woodrow Developments Ltd)

Reverting to the recently concluded Reopened Formal Investigation into the Loss of the MV Derbyshire, in the end the most striking feature of that investigation was not the vast array of gadgets available for use in the courtroom, but the degree to which it demonstrated that the past and continuing success of specialist commercial courts has little to do with the state of their accommodation or their technical facilities, but much to do with the degrees of professionalism and professional excellence demonstrated by all who regularly participate in their work, including judges, counsel, solicitors and expert witnesses, and the remarkable degrees of realism and pragmatism generally demonstrated by the clients who use them. These are all qualities that commercial practitioners should fight to protect from being swamped in a rush for modernisation.

Karen Troy-Davies is a barrister at Essex Court Chambers.