As the UK's second-largest city, Birmingham should be well placed to enjoy a vibrant commercial litigation scene. But with less than a quarter of local cases being listed in the Birmingham courts, it is clearly not realising its full potential.
Many argue that to do so, the city should get its own full-blown Commercial Court. While many scoff at the idea of a separate entity to deal with the region's commercial disputes, the concept certainly has its proponents, not least among local solicitors.
James Gordon, a partner at Wragge & Co, one of Birmingham's top commercial litigation firms, agrees that there needs to be a strengthened Mercantile Court or a full-blown Commercial Court. “I think Birmingham is the commercial centre outside London,” he says. “The number of high-quality commercial cases we're getting has increased out of sight in my five or six years here. I think Wragge & Co and all other Birmingham [commercial] lawyers would welcome a strengthened Commercial Court in Birmingham.”
Currently, Birmingham's Commercial Courts are organised into three distinct courts. The Chancery and Mercantile Courts and the Technology and Construction Court (TCC) are all part of the Birmingham District Registry, through which the High Court operates at a local level. Each has its own judge in charge who is 'cross-ticketed' to sit in all three courts; and all three have a supervisor who is a High Court judge who comes and hears cases occasionally. Therefore, the judge sitting in the Chancery Court is actually sitting in the High Court of Justice, Chancery Division, Birmingham Registry. The TCC judge sits in the Queen's Bench Division (QBD) Technology Court, and the mercantile judge hears the QBD mercantile list in Birmingham.
Like the other legal centres outside London – Manchester, Leeds, Bristol and Cardiff – Birmingham has suffered from a catch-22 situation, whereby lawyers and clients have not had sufficient faith in the local bar and court system to warrant trusting them with the larger commercial cases. This has given local law firms and chambers problems with pulling in the more heavyweight work and lawyers of the calibre to deal with it. Indeed, the Mercantile Court, which can effectively hear most matters to do with commerce-related disputes, was only set up in 1993, and since then it has done a lot to improve this perception. But there remains a prevailing fear that it is unwise to use mercantile and local chancery courts all around the country for cases worth more than a certain amount of money and of a certain complexity.
However, in Birmingham at least, things seem to be improving. There are two strong commercial sets – St Philip's Chambers and 5 Fountain Court – which are increasing in both size and reputation all the time. Furthermore, Her Honour Judge Alton, judge in charge of the Mercantile Court, points out: “Birmingham's very much the largest civil court outside of London and it's an important commercial centre. Law firms and accountants are dealing with more and more international work themselves. The trouble is, the more successful the service, the more pressure it gets.” One of the ways in which this pressure is being dealt with is apparently a serious look into “getting additional support”. The fact that Mr Justice Forbes has been drafted in to sit in the TCC for a period is testament to these efforts.
John Randall QC, head of the commercial group at St Philip's Chambers and the pre-eminent regional commercial silk, says the presence of a High Court judge is crucial to the quality of work remaining local to Birmingham courts. He estimates that currently only around a quarter of the work of the largest half-dozen firms in Birmingham within scope of the regional courts stays in the city. “In the medium term, the Mercantile Court suffers by comparison with the Chancery Court,” he says, explaining that the reason for this is because, in the Chancery Court, if the case is of sufficient weight, then a High Court judge is on hand to hear it, whereas the Mercantile Court does not enjoy this facility. “That's a key weakness in the short term. It puts potential customers off if they feel that by starting in the Mercantile Court, they don't have a chance of having a full High Court judge,” he explains.
While Randall holds nothing against the quality of the judges presently sitting in all three courts, he claims that Judge Alton is “at a disadvantage” compared with her predecessor Malcolm Lee, who had the backup of at least two judges, while Judge Alton is effectively on her own. Indeed, since her appointment in 1997, Judge Alton has come in for a fair amount of criticism from those who miss Lee. While some in the past have complained that Judge Alton is not as accessible as Lee, who was also praised highly for his excellent case management style, Randall, among others, disagrees. “Judge Alton does go the extra mile to make herself available, to make sure trials can be heard in time,” he claims.
In the absence of a more permanent High Court presence, Randall's recipe for ensuring the health of the local commercial scene, at least for the next few years, is to add extra judicial firepower in order to ease the current judges' workloads, increase the depth of expertise on offer and give more choice to clients. However, he is concerned about the chicken-and-egg nature of the conundrum. “The Commercial Court [in London] in general is aiming at cases with a substantial international element and a very high value. In the short term at least, there's not sufficient value of cases to justify taking London judges out to the regions,” he says.
Maybe this situation is on the mend, though. A member of Randall's set is about to start a case involving £35m, with a significant international element, which is certainly a departure from the norm in the value stakes. While there may be tactical reasons for keeping a case out of London, such as avoidance of publicity, Gordon adds that if a case is worth a very large amount of money, say upwards of £30m, he would usually issue it in London, despite fears over media exposure. This is because there is more court availability – waiting time in the Birmingham Chancery Division is currently around 11 months for trial listing – and also because there are far more quality judges available.
Digby Rose, head of litigation at Hammond Suddards Edge, is optimistic about his local commercial centre. “My perception is that the Birmingham courts became established surprisingly quickly in the sense of a court that commercial practitioners were comfortable practising in,” he says. “There's now a willingness to litigate major cases outside London that wasn't there a couple of years ago.” According to Rose, the experience of Judge Alton and Her Honour Judge Kirkham of the TCC gives them an advantage. “It's helpful that they're former solicitors,” he claims. “In terms of case management, they're more aware than some High Court judges.”
Where Rose sees local courts falling down is on the practical side. He says the courts desperately need better technology, in particular the video-conferencing facilities that according to Judge Alton and Judge Kirkham are coming on line this week.
Supervising judge The Honourable Mr Justice Jacob agrees that the answer to Birmingham's problems is to increase judicial and administrative support. “I'm all in favour of the expansion of specialist work out of London, but the idea that courts out of London should be doing the sort of work that the London commercial courts do is nonsense,” he says. Judge Jacob is of the opinion that it is the strong international flavour of commercial litigation that brings work to London, and what keeps it from straying out to the provinces.
Indeed, the presence of multijurisdictional factors and international law can be a major factor in the choice of location to list a trial. Many lawyers complain that because they are not as exposed as London judges to this type of work, Birmingham judges simply do not have the adequate expertise to hear the cases properly, and therefore will not attract such cases to their lists. However, the Birmingham judges refute this claim. “We have both worked in large practices that handle international work,” says Judge Alton of herself and Judge Kirkham. “And we also enjoy extremely high-quality representation and assistance from lawyers presenting their cases.” Judge Kirkham adds: “The local bar is of a very high quality and we benefit very much from that.”
Another factor in considering whether to establish a separate Commercial Court is the age-old question of whether it is still feasible to retain the antiquated divisions between chancery and commercial work. The Heilbronn-Hodge report of 1993, a joint committee of the Bar Council and Law Society, recommended the merger of all the business work of the QBD – in other words the work of the Commercial Court, which sits within the QBD – and the Chancery Division, with “off-shoot” courts to hear specialised cases such as shipping, patent, technology and insolvency. But the feeling locally is that the name of the court is insignificant. What people want is a decent judge who understands the issues, can manage their cases well and who can produce a decent and well-reasoned result.
“There's actually very little difference between chancery and commercial these days,” agrees Gordon. But he adds: “I don't care what division I sit in, I just want a good judge.” Indeed, the judges presiding over the existing courts seem to hold a similar view. His Honour Mr Justice Boggis QC, the judge in charge of the Chancery Division in Birmingham, says he is “happy with the system of the three specialist courts,” because he thinks “that what's important is less the name of the court and more the identity of the person who hears the case”. One of the benefits of the Birmingham system is its shared list system, which is an additional list to the normal lists of the courts. If a case is very strongly expected to go to trial on its original date, and could be heard by any of the three judges, it will enter the shared list and then the judges will decide between them who should hear it.
Given the settlement rate of trials in the three divisions, two additional cases, the fourth and fifth fixtures, will be listed at any one time, in addition to the three cases listed before the three specialist courts. Those two additional cases could be taken by any of the Section 9 judges (circuit judges sitting as High Court judges under Section 9 of the Supreme Court Act 1981) who become available.
According to Judge Boggis, the three judges cooperate closely in allocating cases among themselves, which is possible because they are cross-ticketed. “I think that's the best solution outside London,” he says. He is, however, concerned by the long waiting list for chancery listing. “I think there might be a case for a fourth specialist judge for all three courts,” he ventures.
His colleague Judge Alton agrees, but would like to see higher judicial presence. “I'd welcome a more permanent form of High Court judge availability because it would enhance the reputation of the court and be good for the local bar,” she says. She explains that such exposure would also be very good practice for the younger members of the bar who might not otherwise get so much opportunity to appear before a High Court judge. “It's my belief that a High Court presence enhances the reputation of the court and underlines the importance of the court centre,” she adds.
|The Birmingham judges|
Supervising Judge – The Honourable Mr Justice Jacob (Robin), High Court
Chancery Division – His Honour Judge Boggis QC (John), specialist chancery circuit judge in Birmingham
Mercantile Court – Her Honour Judge Alton (Caroline)
Technology and Construction Court (TCC) – Her Honour Judge Kirkham (Frances)