REUTERS | Jonathan Drake

On the “super-highway” to more joined up and competitive courts across England and Wales

4 July saw the launch of the Business and Property Courts in London. This was the first of a series of launches, with Birmingham, Leeds, Manchester, Bristol and Cardiff following.

I was fortunate to attend the London launch, and the event in Leeds with Raichel Hopkinson, on 10 July, (which Thomson Reuters was delighted to sponsor).

London

A galaxy of judges attended the London event, and there were presentations by The Right Honourable David Lidington MP (the recently appointed Lord Chancellor), Sir Geoffrey Vos (Chancellor of the High Court of England and Wales), Sir Brian Leveson (President of the Queen’s Bench Division), Sir Peter Coulson (Judge in charge of the Technology and Construction Court (TCC)) and Lord Thomas of Cwmgiedd (the Lord Chief Justice of England and Wales), plus a representative of TheCityUK.

David Lidington described the launch of the new courts as “a landmark event”. He recognised the huge contribution made to the economy by the legal services sector, and the need to safeguard the position of the English courts, particularly in the face of Brexit. His speech has been published in full on the Gov.uk website.

I took a number of key messages from the judicial presentations, which explain the rationale for introducing the Business and Property Courts of England and Wales (B&PCs), and the potential benefits:

  • The initiative is very much judge-led, which was clear from the huge number of judges in attendance and the number of judicial addresses, and is strongly supported by the judges of all the constituent courts under the new umbrella of the B&PCs.
  • A key driver for the introduction of the B&PCs is the need to respond to the increasing competitive threat from other jurisdictions, and to retain the “world class” status enjoyed by our courts. The Rolls Building is the largest dispute resolution centre in the world. From 2015 to 2016, 32% of parties to claims issued in the Rolls Building were from outside the UK, with that proportion rising to as high as 66% of parties in the Commercial Court were from outside the UK.
  • It is hoped that the new “umbrella” will give a much clearer understanding (both nationally and internationally) of what the courts actually do – and that a move away from language that “only lawyers understand” will be helpful. Sir Geoffrey Vos noted that, unfortunately, lawyers have a tendency to use words that others can’t understand – it can be quite a challenge, for example, to explain exactly what “Chancery” means. The new courts will do “just what it says on the tin” and deal with all business and property work litigated in the country.
  • The strength of the individual “brands” of the Commercial Court, the Admiralty Court, the Patents Court and the TCC, for example, is also recognised, so those names will also continue to be used. The “Mercantile” brand will disappear and be replaced by “Circuit Commercial Courts”, which will highlight those courts’ links to the Commercial Court and therefore make it clearer what work they undertake.
  • Great emphasis was placed on the important contribution to the British economy made by the legal sector (very conservatively estimated at £26 billion per year, without taking account of the benefit for other related services – for example, provided by accountants, and actuaries), and the need to preserve the standing of the English courts, England as a preferred jurisdiction for dispute resolution, and ease of enforceability of English judgments, particularly post-Brexit. Reference was made to a brochure (available online) which explains the benefits of UK legal services, post-Brexit, and it was stated that these messages are being promoted internationally (for example, through embassies).
  • The President of the Queen’s Bench Division read out a quote on the White Book that bemoaned the complexity of procedures and how the costs of running cases can exceed the costs in dispute. The twist was that this quote related to the 1895 edition of the White Book! He said that, today, we still face the challenge of modernising procedures – it is a constant battle – and disclosure is the issue over which most complaints are received. He explained how this initiative was a step in the direction of modernisation of the court system and made a rousing call for further procedural modernisation.
  • The “go live” date for the new courts is 2 October 2017. From that date, it will be possible to list cases in the B&PCs in London using CE-File (there will be drop-down options for the various lists and sub-categories of work).
  • The specialist courts and lists in the BP&Cs, will comprise:
    • the Commercial Court (covering all its existing subject areas of shipping, sale of goods, insurance and reinsurance and so on);
    • the Circuit Commercial Court;
    • the Admiralty Court;
    • the Technology and Construction Court (covering all its traditional areas of major technology and construction cases);
    • the Business List;
    • the Insolvency and Companies List;
    • the Financial List (covering banking and financial markets);
    • the Competition List;
    • the Intellectual Property List (including the Patents Court and the Intellectual Property Enterprise Court (IPEC));
    • the Revenue List; and
    • the Property, Trusts and Probate List.
  • Useful information will be made available online, on the Judiciary website. The website will include judicial biographies, judgments, cause lists and other information about the London and regional B&PCs. There is already some preliminary information on the B&PCs online.
  • A Practice Direction is expected in due course, hopefully by 2 October (although that is not yet certain). The Practice Direction will clarify a number of procedural points: for example, on choice of lists, arrangements for transfer of cases into and within the B&PCs, and the definition of what constitutes “specialist work” in the County Court (updating the “Hart Lloyd guidelines”).
  • It is hoped that electronic filing might be ready in the regions by Spring 2018 (although that is not a firm date). In the meantime, cases will continue to be issued “manually” in the regional B&PCs, albeit in the relevant courts and lists. Nevertheless, the transfer of cases from London and the regional centres will be facilitated and supported by regional staff access to CE-File.

Leeds

At the Leeds event, on 10 July, presentations were given by Sir Geoffrey Vos, Sir Alastair Norris, Sir Peter Coulson and Sir Gerald Barling (as well as a few brief words from me, and from Sue Harris, the immediate past president of the Leeds Law Society).

The judges reiterated the key messages from the London event, emphasising the need to respond to competitive threats from other jurisdictions, and to be more outward-looking and pro-active, if UK plc is to thrive post-Brexit, and, crucially for the regional B&PCs, the fact that no case should be too big to be tried in them.

However, the following points were also made:

  • In regional specialist courts, it is possible to have high quality justice at lower cost and greater speed than in London. That message needs to be communicated.
  • The launch of the B&PCs is of crucial importance to an area such as Leeds, which has a rapidly rising population and is now the fourth largest urban centre in the UK.
  • Progress with the new courts will be incremental. It is recognised that the local “court estate” does not benefit from the same facilities as the Rolls Building, but “Rome was not built in a day” and, as the new courts are used, further investment in the infrastructure can follow.
  • The new court in Leeds will be known as “The Business and Property Courts in Leeds” (rather than the Leeds Business and Property Courts), and the same format will apply for the other regional B&PCs.
  • One of the biggest advantages of the changes will be increased connectivity between the Rolls Building specialist jurisdictions and the regions, with the introduction of a “super-highway” between London and the regional courts. The aim is to provide excellent, equal dispute resolution services across England and Wales. There will be a critical mass of judges in each centre, so as to achieve this.
  • Cases with a regional connection should stay in the regions, where the waiting lists are considerably shorter: for example, where the parties are local, the subject matter or the witnesses are local.
  • In answer to a question from the audience, it was emphatically confirmed that it should be possible to issue competition-related cases in the regional B&PCs (rather than them being required to be listed in London, as currently) and that that will be clarified in the PD.

Based on what I have heard so far, I genuinely believe that this development will have the greatest potential impact in the regions.

Cynics might say that the proposals are aimed at clearing certain cases from London so that the judges there can focus on the really big, specialist cases. However, repeated references were made to Briggs LJ’s statement (following his Civil Courts Structure Review) that “no case should be too big for the regions”, and there seems to be a real commitment to ensure that key commercial centres throughout England and Wales have access to high quality judicial services, locally. This is made most clear from the financial commitment to have a critical mass of specialist judges in each of the regional centres. These judges have and are already being recruited.

What has been described as the new “super-highway”, providing more flexibility for deployment of judges, should lead to more cases being dealt with in the regions.

Final thoughts

It will be interesting to see how the landscape changes over coming months and years.

Although, undoubtedly, there will be challenges – for example, with some of the regional court centres lacking the resources of the Rolls Building – there will, no doubt, also be opportunities.

It seems possible that increased access to specialist judicial expertise at a local level, combined with initiatives to streamline procedures (such as those based on the Shorter Trials pilot scheme, and the forthcoming fixed costs pilot scheme, which will apply in the Leeds District Registry amongst other places) might encourage small and medium sized enterprises (SMEs), for example, to bring cases that, up to now, they would have hesitated to bring due to concerns over costs.

Only time will tell but it does seem that local practitioners, by using the new regional Business and Property Courts, have the chance to shape the future – and that there is a strong will – at both governmental and judicial level, and to make this work.

It is definitely a space to watch with interest, and I plan to do a follow up piece next year, with some thoughts (based on feedback from users of the Business & Property Courts) on what has actually changed in practice.

Practical Law Dispute Resolution Beverley Barton

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