AROUND half the judges in the Commercial Court are unable to hear the Lloyd's litigation because they have been involved in some aspects of it while at the Bar, according to the court's head.
Mr Justice Potter says he expects at least three judges at any one time to be trying the cases but this may be difficult to achieve in the current circumstances (see page 16).
The Commercial Court may borrow a judge from the Court of Appeal next year if the situation causes practical problems, Mr Justice Potter says, although he concedes that this is not an ideal solution.
Difficulties are also arising because judges have friends and family involved in Lloyd's actions, lawyers say.
“Some might feel conflicted out due to friends they know at Lloyd's,” says Peter Driscoll at Elbourne Mitchell.
“As it has been going on for some time, many of the judges would have acted as QCs in the early stages.”
Driscoll says that this will cause problems because a number of decisions will be appealed and there will then be a shortage of judges in the Court of Appeal.
Partner Kevin Ryan from Denton Hall says it is hard to find judges “free and with no peripheral involvement”.
He says that in one of his recent cases, the judge had to declare his interest and was taken off the case.
Another problem facing the court is the demand by litigants to have their cases heard early because of the limited amount of cash available.
However, ongoing discussions on a market settlement may resolve the position and lawyers involved are believed to be meeting informally to discuss how such a settlement may work.