REUTERS | Toby Melville

Justice, like the Ritz, is open to all

This quote, generally attributed to Matthew LJ in the nineteenth century, needs to be adapted if what is desired is the TCC’s justice. That is the effect of West Country Renovations v McDowell, decided by Akenhead J on 23 February 2012.

West Country Renovations v McDowell

The case involved a flat in Chelsea recently sold for some £3 million. The contractor’s claim was for about £104,000. The parties were invited to agree that their case should be transferred to the county court but they said they would prefer to stay in the TCC. They said that the ability to secure a reasonably early trial date was important to them (they hoped it would be December 2012) and they wanted the case to be resolved “efficiently”, as (presumably) they thought the TCC would.

However, the court disagreed and transferred the case to the Central London County Court. In doing so, it drew attention to the TCC’s present constitution of four High Court judges (with a new appointment anticipated later this year). The court said that since 2004, its workload had increased by 75%. The court acknowledged that while deputy High Court judges and recorders could take up some of this extra volume, this hadn’t been possible due to “the current financial climate”.

The court therefore concluded that some financial limit should be set and that there should be a general rule that claims for less than £250,000 should be commenced in county courts or High Court centres outside London with TCC designated judges. In London, that means the Central London County Court.

There’s an exception to every rule

But that is not quite the whole story. There are no less than nine exceptions to this rule and even where those do not apply, there is a general discretion for the TCC to keep a case if there is “any other good reason”.

The exceptions include:

  • All adjudication cases (where consistency of case law is important)
  • International cases of any value.
  • Cases involving new or difficult points of law.
  • Public procurement cases.
  • Claims for injunctions and Part 8 declarations.

Going forward, it seems the typical case that should be started in (or transferred to) the Central London County Court is a low value claim where, say, a final account is in issue (just like in West Country Renovations).

So far, this decision only applies to TCC cases in the High Court in London. Parties are still free to start lower value cases in TCC centres outside London. It is also useful to note that in two areas (adjudication and public procurement) the need to develop a consistent body of case law has been included to justify an exception to the general rule.

Rationalising court business

It could be said that this decision demonstrates a rationalisation of the TCC’s business. Now that the move to a fully High Court judge bench is nearly complete, the cases that they will consider will be selectively chosen. It seems that the run-of-the-mill case now belongs in the Central London County Court.

It remains to be seen whether there may be some margin of appreciation as regards the criteria the TCC will use in this, in particular as to the choice of cases involving new or difficult points of law. The law must progress by decided cases and there have been some recent cases where the sum involved was relatively small, but the principles of law were significant. It is to be hoped that such cases would not be seen as run-of-the-mill and would be exempt from the general rule.

An example of a case that might now be sent to the county court is Berent v Family Mosaic and others where the amount claimed was low. However, the principles of law needed detailed consideration. I query whether it would pass the new test.

What would parties lose if their case is heard in the county court?

In answer to this question, a number of issues spring to mind:

  • A decision on a point of law will probably not be reported.
  • The parties will no longer be the beneficiaries of the TCC’s efficient listing system.
  • The parties will lose the opportunity of having their claim determined by a High Court judge or, in some cases, a deputy High Court judge.
  • Their route of appeal will (in some cases) be to the TCC, not the Court of Appeal.
  • There will inevitably be some uncertainty on cases on the borderline of the criteria.
  • There are some types of cases (such as pollution cases) which are surprising by their omission from the exceptions.

It is also unclear whether there was consultation as to the capacity of the Central London County Court to take on the TCC’s surplus case-load when the present compulsory jurisdiction for county court cases is £25,000 and consultation is in progress on raising this to £100,000.

No doubt we will see in the coming months whether this results in a streamlined service from the TCC and also how lower value cases fare in the county court. The option of commencing proceedings in lower value cases in TCC centres outside London remains available and may become more attractive to the parties in light of this.

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