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Interview with HHJ Klein: part 1 of 2: civil courts structure review, Business & Property Courts and Shorter and Flexible Trials Schemes

Regional courts have been put centre stage, with the introduction of the Business and Property Courts (B&PCs) in Birmingham, Bristol, Cardiff Leeds, and Manchester – and Liverpool and Newcastle to follow soon.

With thanks to Sue Harris, Immediate Past President of the Leeds Law Society, Beverley Barton, one of the editors in the Practical Law Dispute Resolution team, was delighted to have the opportunity to submit questions to His Honour Judge Klein, a Specialist Chancery and Circuit Commercial Judge, principally based on the North Eastern Circuit (who is the lead Circuit Commercial Judge for the North Eastern Circuit) and to get his thoughts on recent developments and what they mean for the regions.

In part one, HHJ Klein discusses Briggs LJ’s Civil Courts Structure Review, the B&PCs, the Shorter and Flexible Trials Schemes and proportionality. In part two, he considers what practitioners should do regarding the B&PCs and the impact of the HM Courts and Tribunals Service (HMCTS) modernisation programme on the regions. He also offers advice for the future and reflects on the future of English civil justice.

In his Civil Courts Structure Review, Briggs LJ (as he then was) said that no case should be too big for the regions – and the B&PCs came into operation on 2 October 2017. As a regional judge, what are your thoughts on these developments?

You will not be surprised to learn that I entirely endorse Briggs LJ’s sentiments.

Whatever may have been the position in the past, there is now a clear acknowledgement, at the highest level, that the specialist civil courts in the regions, such as in Leeds, play a role in the administration of justice equal to the Rolls Building. In this respect, I can do no better than quote from the Chancellor’s explanatory statement announcing the formation of the Business and Property Courts (the B&PCs), in which he said:

“Lord Justice Briggs’ reports have consistently recommended, and the Judicial Executive Board has accepted, that no case should be too big to be tried outside London. [With the formation of the B&PCs] we should be able to provide an integrated Business & Property Courts structure across England & Wales. The aim is to achieve a critical mass of specialist judges sitting in each of the Business & Property regional centres so that all classes of case can be managed and tried in those regions. At the moment, many such cases migrate to the Rolls Building for a multitude of inadequate reasons. Once there, they are often tried by a section 9 circuit judge from the region whence the case originated.”

A further recent acknowledgement of the significant role played by the regional courts has been the proposal, by Jackson LJ, that his Capped Costs List Pilot Scheme should operate in Leeds, in the B&PCs (and in the B&PCs in Manchester and the Circuit Commercial Court in London).

The reality, at present, is that it is not uncommon, at least in certain divisions, for a trial in the Rolls Building to be conducted by a section 9 judge sitting as a judge of the High Court or by a Deputy High Court Judge, who is likely to be a practising barrister.

One can look in the Law Reports in any given week to see that these judges are deciding significant cases at first instance.

With the coming into operation of the B&PCs, there should be even less reason for cases which have a regional connection to migrate to London. A principal aim behind the formation of the B&PCs has been to ensure that each case is tried by the right level of judge and that where the trial takes place is not to be dictated by where judges of that level tend to base themselves. The B&PCs Practice Direction gives effect to this aim in a number of ways. By way of example, in the commercial field, in which I have a particular interest, the Practice Direction provides that:

“A judge of the Commercial Court may, where appropriate and subject always to available judicial resources, be made available to hear a claim issued in a Circuit Commercial Court.”

This is something which has never been explicitly stated in the rules before. More generally, the Practice Direction now makes specific provision about the location where a claim in the B&PCs ought to be issued, and requires links with a particular region to be taken into account when a court is being asked to consider the transfer of a case to another court.

It goes without saying that litigants should consider a multiplicity of factors – not merely the size of the case – if they have the option to litigate in more than one location. One of the initiatives which I have introduced, with the assistance of the Leeds Law Society, is the publication, on the Leeds Law Society website, of hear-by dates in the B&PCs in Leeds. This information will be updated on an approximately six-weekly basis and is accessible to all court users. A comparison of those dates with the hear-by dates in the Rolls Building shows that litigants are more likely to get an early trial date in Leeds than in the Rolls Building.

A further initiative I have introduced, as the Circuit Commercial Judge, is generally to fix the trial date in a Circuit Commercial Court case at the first costs and case management conference, so that the parties have a clear timeline for their litigation.

So what do you see as the benefits of the B&PCs?

Again, in answer to this question, I do not think I can do any better than cite the Chancellor’s Explanatory Statement in which he identified the four key advantages of the B&PCs, namely that:

  • It has an intelligible name.
  • Regional B&PCs will be joined up with the Rolls Building.
  • There will be flexible cross-deployment of judges.
  • It will retain familiar procedures.

Of greatest interest to me are the second and third advantages. In my view, the closer the links between the regional specialist civil courts and the Rolls Building, the better the court system for litigants in the regions.

What impact have procedural developments such as the Shorter and Flexible Trials Schemes had in the regions?

These two schemes apply only to work in the Rolls Buildings. Nevertheless, I would like to think that, in part, they came into being because, in Leeds for example, we have always adopted a flexible approach to the operation of the specialist civil courts. As to this, I offer these two examples.

First, the resident section 9 judges have, ever since I can remember, conducted cases across all the Chancery, Circuit Commercial  (formerly Mercantile) and Technology and Construction Courts.

Secondly, I have already mentioned that the B&PCs Practice Direction makes explicit that, in appropriate cases, Commercial Court judges may be available to try Circuit Commercial Court claims. Such flexibility has existed for a long time in Leeds. Successive Vice-Chancellors have made themselves available to try cases, across both the Chancery Division and Queen’s Bench Division, which ought to be tried by a High Court Judge.

Our new Vice-Chancellor, Barling J, is no exception to this practice. His introduction to the recently published Leeds Law Society Brochure on the B&PCs in Leeds sets out clearly the very great efforts to which he is going to make the B&PCs, and the flexibility the B&PCs Practice Direction envisages, work.

In the commercial sphere, Blair J, who at the time was the judge in charge of the Commercial Court, had already indicated to me, before the formation of the B&PCs that, in an appropriate case, judicial deployment allowing, he would be happy to make available a Commercial Court judge to try a Circuit Commercial Court case in Leeds.

Also, as many practitioners know, we are fortunate in Leeds that one of our presiding judges is Males J, who is a Commercial Court judge. Recently, the parties in a Circuit Commercial Court case expressed a wish for the claim to be tried by a Commercial Court judge. Liaising with Males J and Norris J, the then Vice-Chancellor – and because I took the view that the claim was suitable for trial by a High Court judge – I was able to make arrangements for Males J to try the claim, although the case did settle before trial.

Perhaps even more directly relevant to the two schemes to which you have referred are, first, the fact that, as I have noted, our hear-by dates in Leeds already compare very favourably with the Rolls Building hear-by dates and, secondly, that the Leeds District Judges are operating a pilot scheme (details of which also appear on the Leeds Law Society website) which allows them, in an appropriate case, to dispense with costs management.

Do you think that changes are required to achieve a proportionate approach to dispute resolution?

I do think it is important to remember that a proportionate approach to dispute resolution is not always the same, in a particular case, as what appears, superficially, to be the cheapest approach.

What litigants are entitled to expect, is a fair, efficient and not unnecessarily costly resolution of their disputes. I do not think anyone would suggest that the current practices and procedures are unfair and, even if someone might suggest that, I do not know of any evidence to support such a suggestion.

All those who play a part in litigation can probably become more efficient. I have already referred to two pilots, the Capped Costs List Pilot Scheme and the Leeds Chancery District Judges’ Pilot, which are designed to allow for more efficient dispute resolution.

We (the resident section 9 judges in Leeds) try to support the efficient resolution of disputes in our case management decisions. We also try to make litigation in our courts more efficient in more practical ways. For example, we have published a Guidance Note on the preparation of court orders in the specialist civil courts, the aim of which is to ensure that the drawing of orders by the court is carried out more efficiently. As more practitioners take the steps we have endorsed in the Guidance Note, the court has found that orders are being drawn more quickly and so are being sent out to the parties more quickly than previously.

Courts and Tribunals Judiciary Practical Law Dispute Resolution HHJ Jonathan Klein Beverley Barton

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