A new Business and Property Court is coming your way soon

In the last few months, there have been a number of developments in the court system of considerable potential importance to technology and construction practitioners.

A new grouping, the Business and Property Court, has been formed by the judiciary. This essentially comprises the Chancery Division, the Commercial Court and the Technology and Construction Court (TCC). The media release that announced this decision described the new entity as a:

“… single umbrella for Business Specialist Courts across England and Wales.”

It is important not to forget the other courts that will come within the umbrella – the Admiralty Court, the Mercantile Court, the Financial List, the Companies and Insolvency Court, the Patents Court, the Intellectual Property and Enterprise Court and the Competition List. While that list is long, in reality those other courts had previously been perceived to be under the individual umbrellas of the Commercial Court or the Chancery Division respectively.

This is, on one level, a pretty dramatic development. There are many distinct differences between the three jurisdictions. Are they effectively being amalgamated? Or is this simply an attempt to better coordinate the jurisdictions? Or is it mere PR, or even worse, the purists might say, marketing?

The answer is that time alone will tell. The media release gives material to support all three positions. Historically there has been a certain amount of debate, even verging on dispute, as to the respective workloads of the three jurisdictions. While that has involved the Commercial Court and Chancery Division to a greater extent than the TCC, the TCC has not been immune from the debate. Chancery practitioners still talk in hushed and faintly outraged terms about a case about nuisance on a construction site, which began life in the Chancery Division and was then transferred in to the TCC by the presiding judge of that division. This was a land case and not a brickie one, they huff. Some categories of dispute are heard in more than one division. Take procurement cases for example. While their home has now become the TCC, for a good long while they bounced between the Chancery Division and the TCC.

My prediction is that the three jurisdictions will maintain their own identity. Of course, the edges will soften and a jolly good thing too. Inflexibility benefits no-one. Care, though, is needed. There has long been debate about the extent to which one should have judges who have specialist experience in the area that they sit. My view is that with the distinguished exception of the Court of Appeal, judges who have direct experience in the area in which they sit are not only a good thing, but are bordering on essential. Furthermore, working and procedural practices that reflect the specialist areas of work are also a good thing.

We are very lucky with the present TCC. There are six High Court judges who are judges of the court, with a number of other experienced judges who are ticketed to sit there. They bring a wide mix of experience. While I have the greatest regard for other judges, I confess that I still prefer to have my cases in the TCC decided by judges who have direct experience in that area. That is not to deprecate for a moment the contribution of others from outside. In the early days of the Jackson reforms, Christopher Clarke J regularly sat in the court with very great distinction.

However, it would be a very great shame if the new reforms diluted the simply excellent package that the current six provide. We have worked hard to create this world-class court and it is important that it continues. Equally, the specialist listing and clerking facilities provided in the TCC, which are different from those in the Chancery Division and the Commercial Court, also need to continue. The working practices that have developed hard over the years and are an integral part of the operation of the court must survive.

A Business and Property Court is coming to a town near you

My suspicion is that little will change in London, at least in the short and medium term. It would be a great shame if it did. The battle to get the TCC to where it is now and the dark days at the end of the last century and the beginning of this must not be forgotten.

It is probably outside London that the effect will be biggest. The media release says that there will be Business and Property courts in Birmingham, Manchester, Leeds, Bristol and in Cardiff, with expansions to Newcastle and Liverpool likely in the future.

This is clearly an attempt to move more specialist work to court centres outside London. Over the last few years, those court centres have developed considerably. They are staffed by specialist circuit judges. Though those judges will have one major specialism, they will be what is called “cross ticketed”, enabling them to sit widely across the Business and Property court. A marvellous example of that (albeit from the not immediate past) was in Birmingham when the mercantile judge was Judge Caroline Alton, the TCC judge was Judge Francis Kirkham and the Chancery judge, Judge Alistair Norris QC, as he then was. While they each majored in their own areas, they all developed considerable expertise in both case management and substantive issues in other jurisdictions. I recall arguing a case in front of Judge Kirkham when a question of privilege arose that required another judge. She left the court and was immediately replaced by Judge Norris. He decided the privilege issue. He walked out one door and Judge Kirkham walked back in through another and continued the hearing. Efficient dispute resolution at its very best.

It is to be hoped that the system of having judges with specific specialisms continues. Judge Raynor QC retired as a TCC judge in Manchester last month, after a very distinguished career. There is another specialist TCC judge there, Judge Stephen Davies, and two Chancery and two Mercantile judges. Of course they cross ticket and do so very effectively. However, it is to be hoped that as time goes on in all the court centres referred to above, at least one specialist TCC judge will continue to sit.

It is clear that there is a strong move to encouraging work to remain in court centres outside London. One of the challenges will be to have a system that identifies the case that requires a High Court judge to hear a case outside London. No one pretends that is straightforward. How, for example, is the case to be managed day to day when the judge is not regularly sitting in that court centre? Those practical difficulties in the past often meant that cases which might require a High Court judge have simply ended up being issued and heard in London. A challenge to be faced.

What we will probably see overall, both in and out of London, is evolution and improvement coupled with the occasional but hopefully only occasional blip. Let’s hope so.

Keating Chambers Paul Darling OBE QC

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