Commercial break

The Commercial Court is under constant attack. Jon Robins asks whether the critics have been too quick to see only the bad side

“Totally antiquated and rather shabby”, “third world” and “a public disgrace” are just some of the harsh – but fair – phrases bandied about by lawyers concerning the Commercial Court over the last 18 months.
One could be forgiven for thinking that there was little love lost between the profession and the court that was once dubbed “the jewel in the English legal system” by Lord Wilberforce.
But such an impression couldn't be further from the truth. Practitioners exclusively reserve their hostility for the patently inadequate facilities, but ask them about the non-physical attributes of the court, such as the efficiency of its administration and the quality of judicial decision-making, and a very different picture emerges. “The staff do a fantastic job and a very difficult job in juggling the needs of solicitors and barristers who are all wanting their cases on,” says Brian Lee, senior clerk at 20 Essex Street.
“Recognition of the quality of the judges and the judgments is very high and it produces the kind of results that international business feels very comfortable with,” says Patrick Sherrington, head of litigation at Lovells. He says the court practises “blue ribbon law” that has a strong reputation around the globe.
Finding fault in the manifold failings of the court service is an easy and enjoyable way to pass the time for many lawyers. But not so for those that inhabit the Commercial Court.
“The niggles tend to be those minor niggles that relate to the mundane issues,” continues Sherrington, referring to moans such as the lack of space to store paperwork and the scarcity of conference rooms, issues that he acknowledges “sound pretty insignificant set alongside the majesty of justice”.
“These presentational issues I think in the short term are completely unimportant,” comments Charles Spragge, a litigation partner at CMS Cameron McKenna. “But in the medium to long term, it's essential that there's investment, because the court will have to keep up [with the competition] and provide proper services.”
At the beginning of March, the Lord Chancellor's Department closed its consultation exercise on last year's Cap Gemini Ernst & Young (CGEY) feasibility study, which presented the business case for the establishment of a new Commercial Court.
It was an argument that Lord Irvine seemed to be quickly persuaded of, and last March he accepted the feasability study's chief recommendation to create a modern, high-tech Commercial Court. “UK commercial and maritime legal services are thriving, attracting £800m of business a year, but we must modernise the Commercial Court to make sure that London maintains the premier centre for settling commercial disputes in the future,” he said.
No one is going to argue with that. A consultation paper was issued last December flagging up the following areas for consultation: the possibility of rehousing the court in purpose-built accommodation; a merging of the specialist courts (Commercial, Admiralty and Technology and Construction); introducing new IT; and whether Commercial Court fees should be treated separately from those of the High Court and whether, for example, daily hearing rates should be introduced.

“The whole focus of the court service is on the people receiving the service and, to that end, buildings and IT are not the driver”
Ian Hyams, Supreme Court Group

One lawyer last week reflected wearily that modernising civil justice “was as much about people and procedures as buildings and IT”. But so lamentable is the state of the courtrooms, presently divided between the Royal Courts of Justice and St Dunstan's House, that much of the debate will no doubt be preoccupied with the latter. The Commercial and Admiralty courts have no designated courtrooms, apart from one courtroom at St Dunstan's reserved for the Admiralty Court. The Technology Court has eight courtrooms allocated to it at St Dunstan's. In practice, the Commercial Court sits wherever it can find a courtroom.
“We're in danger of failing to give our users the sort of service that they increasingly expect,” Mr Justice Moore-Bick, head of the Commercial Court, readily acknowledges. It was his colleague, the senior Commercial Court judge Mr Justice Coleman, who, writing in The Lawyer last year, memorably damned St Dunstan's as “a public disgrace”.
Judge Moore-Bick does not go quite so far. But he notes – no doubt with considerable understatement – that “it doesn't quite have the same style” as the “marvellous” but “shabby” Royal Courts of Justice. The judge is encouraged by Lord Irvine's recognition of the economic value of the courts, but hopes that the momentum for change continues. “There's also a danger that you slip back if you're not seen to be providing a modern service,” he warns. “I'm not saying that people are put off by the slightly dowdy buildings, but there becomes a point in which you're thought not to be putting in the investment.”
The move to merge the specialist courts, as envisaged by CGEY, has also led to some degree of alarm and occasional bewilderment among their users. One leading litigator observes that the work of the Admiralty Court and the Commercial Court are close enough to be “interchangeable”. “But,” he explains, “the work of the Technology Court and Construction Court is quite different and there's really no logic to merging.”
Other lawyers fear that a bigger and broader court could dilute the expert knowledge of the bench. “The Commercial Court has a lot to offer, but its judges must not lose their specialist knowledge of commercial matters,” warns Spragge at Camerons.
The consultation exercise talks of the possibility of piloting IT systems in the court. Certainly, something has to be done to smooth the grinding transition between state-of-the-art law firms and the Dickensian paper-based practices still in place in the courts. “Solicitors handling litigation prior to action are working electronically, and as soon as you get to court you have to start printing off the bundles. It's very frustrating,” says Spragge. He draws an unflattering comparison with the facilities offered by the state-of-the-art Dispute Resolution Centre, which is run by the London Court of International Arbitration just down the road at Breams Buildings.
Judge Moore-Bick says that an electronic revamping of the “backroom services” is due as part of the Modernising the Civil Courts Programme. In particular, he identifies as forthcoming innovations electronic communication between court officers and users, electronic diary-keeping and listings.

Vital statistics

There are 12 judges nominated by the Lord Chancellor to sit in the Commercial Court. Only eight judges are available to the court at any one time.
Over the last 12 months, there were 932 claims issued in the Commercial Court, comprising 456 breach of contract claims, 150 damage to cargo claims and 326 miscellaneous claims (mostly comprising arbitration).
Over the last 12 months, 68 per cent of claimants and 60 per cent of defendants were from outside England and Wales.

But the judge also hopes that the court will be used to test-run cutting-edge technology systems as proposed in the consultation paper. “We ought to be seen at the forefront of the development of the modern techniques, but also because our users, who are mainly the medium-sized City firms, have invested heavily in IT, and they're the sort of customers that are well placed to make use of these electronic processes.”
Away from the sweeping aspirations of the CGEY paper, practitioners have practical concerns – albeit minor ones – about the day-to-day running of the court. Lee at 20 Essex Street mentions the waiting times for trials, which he estimates went from 6 months to 12 months following the introduction of the Woolf reforms in April 1999.
“We haven't noticed any great delay in waiting times,” comments Keith Houghton, court manager for the Admiralty Court and the Commercial Court. “There are peaks and troughs, which are caused by substantial cases such as the Lloyd's litigation.”
According to John Selch, group manager at the Royal Courts of Justice, there was a period of adjustment after the Civil Procedure Rules were introduced in which work dropped off in all divisions of the court. But this was a result of the profession getting used to the changes. “Obviously, everyone had heard the theory and people had to get used to the reality,” Selch argues. “The legal community may well feel there's been some delay, but that hasn't been from our side.”
Lee acknowledges that it now takes between six and nine months to get a 10-day trial on, which he reckons is “pretty good going”.
One senior clerk, who describes himself as “a contented customer”, observes that the delays before hearings are “negligible compared with what was happening in the early to mid-'90s. You have to remember that the courts are flexible,” he points out. “Because, if you say there's an urgent hearing which needs resolving in two months, on the whole they'll be able to help out.”
His one negative observation is that the listings offices are “probably one or two staff down”. Houghton acknowledges that they have identified the need for some extra staff time, although “not a great deal”.
In fact, regular court users are very supportive of the way in which the court is run. “The Commercial Court is more responsive to the marketplace that it serves [than other parts of the court staff],” says Sherrington. “It may be that it's easier because the market is more defined compared with, for example, the Queen's Bench, where there's a larger community.”
Ian Hyams, director of the Supreme Court Group, certainly believes there is an attitude of cooperation between court users and court staff. “And that's just the sort of spirit we need for a modernising agenda,” he reflects. “The whole focus of the court service is on the people receiving the service and, to that end, buildings and IT are not the driver.”
The close relationship between users and the court is a theme that Judge Moore-Bick picks up on. “It helps that the judges, who ultimately have to bear the responsibility for the way the courts are run, are themselves commercial practitioners,” he observes. “We know a lot of the solicitors and the members of the bar from our own time in practice, and we understand what it's like using the courts from the other side.” As he points out, there is “a fairly small group of repeat users” whose experience of the courts feeds directly back into how they are run.
By way of an illustration, he points to the new Commercial Court Rules, which come into force next week and which mark the end of an 18-month “root and branch” review of the court's procedures. One of the “encouraging features about this exercise”, he adds, has been the extent to which court users have been involved in the process. “The message is 'steady as she goes',” he reports, adding that the pre-existing procedures have survived “almost entirely intact”.
Clearly, the greatest asset of any court resides in the knowledge and the experience of the bench. The strength of the Commercial Court has always been in its specialist judges. “We're getting a new generation of judges coming through at the moment,” reports Spragge. “A much younger set of judges, and that's healthy because it wasn't so long ago that they all seemed a bit crusty, a bit formidable, and now they're much more informal and even more commercial.”
The Government sought the views of how best to “market” the Commercial Court, saying: “Our aim would be to seek opportunities for raising the profile of our specialist courts through appropriately targeted media, such as speeches and articles in professional journals.”.
“It's a difficult concept to sell justice,” notes Sherrington. “But the English legal system and English commercial judges are held in high repute, and it would be foolish to ensure that this view was not maintained.”

Mr Justice Moore-Bick

“We're in danger of failing to give our users the sort of service they increasingly expect.” This is the view of Mr Justice Moore-Bick, head of the Commercial Court. This comes in the week after the consultation on the plans to take forward the modernisation of the Commercial Court.
“You need modern courts that are equipped with the space to enable people to work, space for computers, and also the provision of ancillary facilities so lawyers and litigants can discuss the case,” the judge continues. In short, what the Commercial Court needs is a new home, purpose-built for the job, as proposed in the Cap Gemini Ernst & Young (CGEY) feasibility study.
“I think the prospects are better now than they've ever been in the past, and there's a certain amount of momentum at the moment,” the judge continues. Nevertheless, he acknowledges that the debate is “problematic”, not least for the reason that funds have still not been earmarked for a new building.
Judge Moore-Bick joined the Commercial Court bench in 1995 and steps down as its head at Easter. He regards the CGEY report, which is understood to have cost £400,000, as “a useful exercise”.
“There was a lot of preliminary education that had to go on,” he tells The Lawyer. “But it did lead to the proposal that there should be extra resources to enhance its ability to expand the services it's operating for the international business community.”
The judge is heartened that the Lord Chancellor, Lord Irvine has recognised the economic value of the court, which, according to the Government's own reckoning, is worth £800m in invisible earnings. But he warns that the modernisation programme must be pushed forward. “There's also the danger that you slip back if you're not seen to be providing a modern service,” he says.
The much-needed introduction of an IT system into the court is, according to the judge, “already underway in developmental terms” through the Government's Modernisation of the Civil Court Programme. “We're enthusiastic about that,” adds Judge Moore-Bick. “And we're also enthusiastic about any suggestion that we might be a pilot for it.”
The consultation paper identifies the specialist courts as “excellent candidates” for pioneering new IT, which will be deployed through the Master of Computer-Mediated Communication programme. “I'm sure that there would be some teething problems but we have good relationships with the users,” he adds.
Another major area for consultation is the proposed merger of the different specialist courts (Commercial, Admiralty and Technology and Construction) into a single court. Judge Moore-Bick notes that there is already a “high degree of integration” between the Commercial and Admiralty courts through its listing arrangements and court procedures. But the Technology Court is a very different entity. “The users don't want to merge,” he says. “We think that our ability to sell ourselves rests to a large extent on the known expertise of the judges, and we're nominated to sit in the Commercial Court because we have the background and there wouldn't be a lot gained by merging us into a larger court.”
The Government also sought views on the controversial proposals to treat the fees in the specialist courts separately from the other courts, “on the grounds that commercial and technology litigants are generally in a better position than most to meet costs”.
“Over the years, the Commercial Court has become an institution which is selling its services to the outside world. We're very pleased to be doing that and the Lord Chancellor is anxious that we expand that side of the work if we can,” the judge says. “But it's still part of the ordinary court system and therefore the increase in court fees raises a lot of questions – and it's one in which the judges are best off keeping their own counsel.”