11 April 2011
Local courts can be entirely appropriate places to bring complex litigation, as Victoria Jones explains
A question frequently put to barristers practising outside London is whether there are advantages to bringing proceedings in local courts.
In the commercial sphere the question is often preceded by a query as to whether it is even possible to commence the claim anywhere other than specialist courts in London’s Royal Courts of Justice (RCJ). The case of CFH Total Document Management Limited v (1) OCE (UK) Ltd (2) National Australia Group Europe Ltd [NAGE] (2010) provides useful guidance on this topic.
The claim related to a contract for the provision of software by the claimant CFH to the second defendant, a subcontractor of the first defendant OCE. Proceedings were issued in the Mercantile Court in the Bristol District Registry as CFH was based in the West Country and had instructed solicitors and counsel in Bristol.
NAGE applied to the Technology and Construction Court (TCC) for the matter to be transferred to the court in London on the basis that the subject matter of the dispute was peculiarly within the experience of the TCC judges. The company said the size, complexity and importance of the case made London the most appropriate forum in terms of the trial and case management.
The application cited CPR rule 30.5(2), which provides that a judge dealing with claims in a specialist list may order proceedings to be transferred to or from that list, and CPR rule 30.2(4), which empowers the High Court to transfer proceedings from a district registry to the RCJ.
The TCC judge hearing the application, Mr Justice Edwards-Stuart, held that it should have been made to the Mercantile Court in Bristol as CPR 30.2(6) requires an application to be made to the court from which proceedings are to be transferred. This did not conflict with the requirements of CPR rule 30.5, as rule 30.5(3) enables the application to be made to a judge dealing with claims in either the Mercantile or the TCC list. Despite this the judge considered that it would be contrary to the overriding objective to refuse to hear the application.
Best in the West
The application was refused. Edwards-Stuart J decided that the suitability of the court, in terms of judges’ expertise, to deal with the subject matter of a particular claim is the single most important consideration.
The judge also ruled that, where the differences between the suitability of different courts for the particular type of case are less marked, factors such as expedition and the saving of costs may become decisive.
There is no machinery by which a judge of the Commercial Court can sit in the Mercantile Court in Bristol. However, High Court judges assigned to the TCC can sit in court centres where there is a TCC list.
Where a case merits case management or trial by a High Court judge, it will generally be more appropriate for the judge to attend the regional centre than for the case to be transferred to London, as decided in Neath Port Talbot County Borough Council v Currie and Brown Project Management (2008).
In the present case, although the TCC was an appropriate forum it was not the only forum. The experience of the Mercantile Court in technical commercial matters was sufficient for it to deal with the technical issues in the case. Since any balance in terms of costs or convenience was only marginally favourable to London, this did not justify depriving CFH of its chosen venue.
Edwards-Stuart J said that the Mercantile Court judge should decide whether the case was suitable for the High Court. If an earlier trial date could be obtained by the matter being tried in the TCC in Bristol by a London High Court judge, this might justify transferring the case to the TCC list.
The above case is a good example of the common misconception that appropriate expertise can only be accessed in London. Many district registries have specialist courts with specialist judges who have great experience presiding over those courts. The message is clear: the High Court judge will travel, not the case. A regionally based client can therefore enjoy the logistical and cost benefits of issuing a claim locally knowing that it is being tried in the most suitable forum by a judge with the right level of expertise.
With this in mind, the recent opening of the new Bristol Civil Justice Centre is noteworthy. It first opened for business on 1 September 2010 and was opened formally by the Lord Chief Justice on 19 November 2010.
The centre has been described as demonstrating the Courts Service’s commitment to ensuring that court users in the South West have access to a first-class civil justice system, bringing all civil work into one building and ensuring cases are heard more quickly due to better facilities with more efficient listings and flexible use of courtrooms.
It is hoped that this state-of-the-art building with first-class facilities in the heart of Bristol’s legal district will encourage lawyers and clients alike to choose the regional option.
Victoria Jones is a barrister at 3PB (formerly 3 Paper Buildings)