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Simple rebrand or first step to a modernising merger? Don’t underestimate the significance of the new Business and Property Courts, argues Ed Pepperall QC
It all started in Birmingham.
Conceived by the city’s presiding Queen’s Bench judges (Mr Justice Haddon-Cave and Mrs Justice Carr) and its Chancery supervising judge (Mr Justice Newey), the idea to create the Business and Property Courts was subsequently adopted nationally by the Chancellor (Sir Geoffrey Vos) and the President of the Queen’s Bench Division (Sir Brian Leveson).
Cynics might argue that the launch is nothing more than rebranding the existing specialist courts. That would be to misunderstand the significance of three important underlying principles that resonate with the wider court reform agenda. The first two apply nationally, while the third is particularly important to the big regional centres such as Birmingham, Manchester, Leeds and Bristol.
First, the new courts bring the specialist jurisdictions of the Chancery and Queen’s Bench Divisions together.
The launch can be seen as a step along the long road to the eventual merger, or at least the realignment, of the Chancery and Queen’s Bench Divisions. In his 2016 Civil Courts Structure Review, Lord Justice Briggs described the divisional structure of the High Court as a ‘historical relic’ observing that it was ‘virtually impossible to create a water-tight dividing line in terms of workload which will neatly separate two groups of High Court judges on any entirely satisfactory or logical basis’.
Merger is not a new idea. A joint report from the Bar and Law Society recommended the creation of a new Civil Division as long ago as 1993. The issue was considered by Lord Woolf in the late 1990s and again by Lord Justice Brooke a decade later. Like other senior judges before him, Lord Justice Briggs stopped short of recommending merger, but concluded that the time had come for a decision about the future of the divisions.
Merger is back on the agenda because of the success of the Rolls Building that, in 2011, brought together under one roof the specialist judges of the Chancery Division, the Commercial & Admiralty Courts, the Technology and Construction Court (TCC) and the London Mercantile Court. This cohabitation has now spawned joint initiatives. The Financial List was introduced in October 2015 as a list shared between the Chancery Division and the Commercial Court. In the same month, the Shorter and Flexible Trials pilot scheme was launched for the efficient trial of more straightforward cases in any of the Rolls Building courts. Later that year, the Electronic Working pilot scheme was also introduced across the Rolls Building courts.
Interestingly, Lord Justice Briggs mooted the creation of a new Business and Property Division. This solution would have seen the non-business workload of the Queen’s Bench Division (principally judicial review, personal injury, clinical negligence and defamation) being hived off into a second division. In their joint statement published on 18 May 2017, the Chancellor and the President described the new Business and Property Courts as an ‘intelligible user-friendly umbrella term’. With the launch of these reforms, we now have an umbrella structure combining the business work of the Queen’s Bench Division with the Chancery Division, while leaving the rest of the QB workload on the outside. This would appear to be an obvious step towards Lord Justice Briggs’ Business and Property Division.
Indeed, readers will notice the reduced significance given to the divisions in the suggested titles to actions in the senior judges’ joint statement. It is not difficult to imagine these parenthetic nods to the old divisional structure being abandoned in due course.
Secondly, the new courts will continue to recognise the specific expertise of each division’s judges while respecting differences in practice and procedure. The new courts comprise 11 specialist lists. The Financial List remains shared between the two divisions. There are then four QB courts and six Chancery lists:
Queen’s Bench
Chancery
It will be noted that the Mercantile Court gets a rebrand; it is now the Circuit Commercial Court, thereby both dropping a Victorian adjective and underlining the court’s close links to London’s Commercial Court. Everything else is self-explanatory. Although at first blush it is not obvious why the Business List is not a shared list between the two divisions, Sir Geoffrey and Sir Brian make clear in their explanatory paper that this new list is intended to cover business disputes that are litigated in the Chancery Division, but could equally be issued in the Commercial Court (in London) or a Circuit Commercial Court (in a regional centre). User choice is thereby preserved.
The use of specialist lists under the Business and Property Courts umbrella ensures that litigants will continue to get the specialist judges that they need to hear their cases, while also allowing for flexible listing arrangements.
The reform does, however, respect the differences in practice and procedure between the divisions. So, for example, QB cases in the new Business and Property Courts will continue to be case managed at High Court judge level, either by full High Court judges or (particularly in the regions) by the full-time specialist circuit judges who sit as High Court judges, thereby retaining the current practice of the specialist QB courts. Meanwhile, Chancery cases will continue to be case managed by masters, registrars and, outside London, district judges. The launch of the Business and Property Courts does not therefore immediately require new rules of court or practice guides, save for a modest amendment to Part 59 to effect the name change from Mercantile to Circuit Commercial Court.
It is difficult to believe, however, that this is the final position. Ever closer working between the two divisions may well lead ultimately to some attempt to streamline practice and procedure across the different courts and lists in the Business and Property Courts. Once that is achieved, and a solution is found to the fact that Chancery High Court judges do not currently have the same commitment to sitting in serious criminal cases that is required of even the commercial-specialist QB judge, some realignment of the divisions may become inevitable. But all that is for another day.
This launch is therefore not just a question of branding. It entails a significant reorganisation of the way in which business and property disputes are litigated in this country. While it might take another decade, the next senior judge to review the future of the divisional structure is almost bound to see these reforms as an important stepping stone to a major realignment, if not the full merger of the Chancery and Queen’s Bench Divisions.
And then to the regional point. The launch of these courts once again affirms Lord Justice Briggs’ claim that no case is too big to be tried in the regions. This principle is now firmly established as part of mainstream thinking and has been accepted by the influential Judicial Executive Board. It is expressly acknowledged by Sir Geoffrey and Sir Brian in launching these new courts. Further, the senior judiciary is committed to ensuring that cases are heard in the most appropriate city, and that cases wrongly issued in London will be transferred back to the regional courts. This is already happening.
Historically, business and property cases outside London have been largely tried by specialist circuit judges. For the most part that is a strength of the regional courts rather than a problem. The big regional centres boast strong teams of experienced specialist judges and, even if one issues in London, the case could easily come before a deputy judge in the Rolls Building. If, however, a case is very complex or valuable, it is appropriate that it should be tried by a full High Court judge. While the Chancery supervising judges sit regularly in the regional courts, QB judges on circuit have too often been diverted to crime and judicial review work. The launch of the new courts is matched by a very welcome commitment from the senior judiciary to ensure that arrangements will be made to increase the ‘red-judge time’ in the regional Business & Property courts and, specifically, to arrange for a full High Court judge to hear the regional cities’ most important business and property cases.
By way of example, Birmingham is fortunate to have a thriving Chancery Court with four specialist judges and supervision by the High Court bench. The team, now led by HH Judge Simon Barker QC, also comprises the former Chairman of the Chancery Bar Association, HH Judge Charles Purle QC, HH Judge David Cooke and the former Bristol Chancery judge, HH Judge Patrick McCahill QC.
The city’s Mercantile Court was recently in the doldrums, but has been reinvigorated by the welcome appointment of HH Judge David Worster. He is now Birmingham’s first Circuit Commercial Judge. As we go to press, HH Judge David Grant is nearing retirement as the city’s TCC judge. He will be missed, but a strong new appointment to the court is expected soon.
As already mentioned, these full-timers will be supported by the greater deployment of specialist High Court judges. For example, Mrs Justice Carr sits as a judge in London’s Commercial Court and TCC. As presiding judge of the Midland Circuit, she will sit regularly in the Business and Property Courts in Birmingham.
The big regional centres already boast top-quality professional services – particularly the law firms, barristers’ chambers, forensic accountants and surveyors – to act in these cases. Indeed, many of us are regularly taking the train down to London to appear in such cases, often for regional clients. The renewed investment in and commitment to the regional Business and Property Courts will allow our clients to obtain reliable access to high quality local justice that is also convenient and efficient. It is equally good news for the regional Bar and for regional law firms who can litigate even their clients’ most complex and valuable cases in Birmingham, Manchester, Leeds, Bristol or Cardiff.
Contributor Ed Pepperall QC is Chairman of the Midland Chancery & Commercial Bar Association
Ed is a commercial Silk practising at St Philips Chambers in Birmingham & London. He sits as a deputy High Court judge in the Chancery and Queen’s Bench Divisions and is Chairman of the Midland Chancery & Commercial Bar Association. He is a former member of the Civil Procedure Rule Committee and a contributing editor of the White Book.
Conceived by the city’s presiding Queen’s Bench judges (Mr Justice Haddon-Cave and Mrs Justice Carr) and its Chancery supervising judge (Mr Justice Newey), the idea to create the Business and Property Courts was subsequently adopted nationally by the Chancellor (Sir Geoffrey Vos) and the President of the Queen’s Bench Division (Sir Brian Leveson).
Cynics might argue that the launch is nothing more than rebranding the existing specialist courts. That would be to misunderstand the significance of three important underlying principles that resonate with the wider court reform agenda. The first two apply nationally, while the third is particularly important to the big regional centres such as Birmingham, Manchester, Leeds and Bristol.
First, the new courts bring the specialist jurisdictions of the Chancery and Queen’s Bench Divisions together.
The launch can be seen as a step along the long road to the eventual merger, or at least the realignment, of the Chancery and Queen’s Bench Divisions. In his 2016 Civil Courts Structure Review, Lord Justice Briggs described the divisional structure of the High Court as a ‘historical relic’ observing that it was ‘virtually impossible to create a water-tight dividing line in terms of workload which will neatly separate two groups of High Court judges on any entirely satisfactory or logical basis’.
Merger is not a new idea. A joint report from the Bar and Law Society recommended the creation of a new Civil Division as long ago as 1993. The issue was considered by Lord Woolf in the late 1990s and again by Lord Justice Brooke a decade later. Like other senior judges before him, Lord Justice Briggs stopped short of recommending merger, but concluded that the time had come for a decision about the future of the divisions.
Merger is back on the agenda because of the success of the Rolls Building that, in 2011, brought together under one roof the specialist judges of the Chancery Division, the Commercial & Admiralty Courts, the Technology and Construction Court (TCC) and the London Mercantile Court. This cohabitation has now spawned joint initiatives. The Financial List was introduced in October 2015 as a list shared between the Chancery Division and the Commercial Court. In the same month, the Shorter and Flexible Trials pilot scheme was launched for the efficient trial of more straightforward cases in any of the Rolls Building courts. Later that year, the Electronic Working pilot scheme was also introduced across the Rolls Building courts.
Interestingly, Lord Justice Briggs mooted the creation of a new Business and Property Division. This solution would have seen the non-business workload of the Queen’s Bench Division (principally judicial review, personal injury, clinical negligence and defamation) being hived off into a second division. In their joint statement published on 18 May 2017, the Chancellor and the President described the new Business and Property Courts as an ‘intelligible user-friendly umbrella term’. With the launch of these reforms, we now have an umbrella structure combining the business work of the Queen’s Bench Division with the Chancery Division, while leaving the rest of the QB workload on the outside. This would appear to be an obvious step towards Lord Justice Briggs’ Business and Property Division.
Indeed, readers will notice the reduced significance given to the divisions in the suggested titles to actions in the senior judges’ joint statement. It is not difficult to imagine these parenthetic nods to the old divisional structure being abandoned in due course.
Secondly, the new courts will continue to recognise the specific expertise of each division’s judges while respecting differences in practice and procedure. The new courts comprise 11 specialist lists. The Financial List remains shared between the two divisions. There are then four QB courts and six Chancery lists:
Queen’s Bench
Chancery
It will be noted that the Mercantile Court gets a rebrand; it is now the Circuit Commercial Court, thereby both dropping a Victorian adjective and underlining the court’s close links to London’s Commercial Court. Everything else is self-explanatory. Although at first blush it is not obvious why the Business List is not a shared list between the two divisions, Sir Geoffrey and Sir Brian make clear in their explanatory paper that this new list is intended to cover business disputes that are litigated in the Chancery Division, but could equally be issued in the Commercial Court (in London) or a Circuit Commercial Court (in a regional centre). User choice is thereby preserved.
The use of specialist lists under the Business and Property Courts umbrella ensures that litigants will continue to get the specialist judges that they need to hear their cases, while also allowing for flexible listing arrangements.
The reform does, however, respect the differences in practice and procedure between the divisions. So, for example, QB cases in the new Business and Property Courts will continue to be case managed at High Court judge level, either by full High Court judges or (particularly in the regions) by the full-time specialist circuit judges who sit as High Court judges, thereby retaining the current practice of the specialist QB courts. Meanwhile, Chancery cases will continue to be case managed by masters, registrars and, outside London, district judges. The launch of the Business and Property Courts does not therefore immediately require new rules of court or practice guides, save for a modest amendment to Part 59 to effect the name change from Mercantile to Circuit Commercial Court.
It is difficult to believe, however, that this is the final position. Ever closer working between the two divisions may well lead ultimately to some attempt to streamline practice and procedure across the different courts and lists in the Business and Property Courts. Once that is achieved, and a solution is found to the fact that Chancery High Court judges do not currently have the same commitment to sitting in serious criminal cases that is required of even the commercial-specialist QB judge, some realignment of the divisions may become inevitable. But all that is for another day.
This launch is therefore not just a question of branding. It entails a significant reorganisation of the way in which business and property disputes are litigated in this country. While it might take another decade, the next senior judge to review the future of the divisional structure is almost bound to see these reforms as an important stepping stone to a major realignment, if not the full merger of the Chancery and Queen’s Bench Divisions.
And then to the regional point. The launch of these courts once again affirms Lord Justice Briggs’ claim that no case is too big to be tried in the regions. This principle is now firmly established as part of mainstream thinking and has been accepted by the influential Judicial Executive Board. It is expressly acknowledged by Sir Geoffrey and Sir Brian in launching these new courts. Further, the senior judiciary is committed to ensuring that cases are heard in the most appropriate city, and that cases wrongly issued in London will be transferred back to the regional courts. This is already happening.
Historically, business and property cases outside London have been largely tried by specialist circuit judges. For the most part that is a strength of the regional courts rather than a problem. The big regional centres boast strong teams of experienced specialist judges and, even if one issues in London, the case could easily come before a deputy judge in the Rolls Building. If, however, a case is very complex or valuable, it is appropriate that it should be tried by a full High Court judge. While the Chancery supervising judges sit regularly in the regional courts, QB judges on circuit have too often been diverted to crime and judicial review work. The launch of the new courts is matched by a very welcome commitment from the senior judiciary to ensure that arrangements will be made to increase the ‘red-judge time’ in the regional Business & Property courts and, specifically, to arrange for a full High Court judge to hear the regional cities’ most important business and property cases.
By way of example, Birmingham is fortunate to have a thriving Chancery Court with four specialist judges and supervision by the High Court bench. The team, now led by HH Judge Simon Barker QC, also comprises the former Chairman of the Chancery Bar Association, HH Judge Charles Purle QC, HH Judge David Cooke and the former Bristol Chancery judge, HH Judge Patrick McCahill QC.
The city’s Mercantile Court was recently in the doldrums, but has been reinvigorated by the welcome appointment of HH Judge David Worster. He is now Birmingham’s first Circuit Commercial Judge. As we go to press, HH Judge David Grant is nearing retirement as the city’s TCC judge. He will be missed, but a strong new appointment to the court is expected soon.
As already mentioned, these full-timers will be supported by the greater deployment of specialist High Court judges. For example, Mrs Justice Carr sits as a judge in London’s Commercial Court and TCC. As presiding judge of the Midland Circuit, she will sit regularly in the Business and Property Courts in Birmingham.
The big regional centres already boast top-quality professional services – particularly the law firms, barristers’ chambers, forensic accountants and surveyors – to act in these cases. Indeed, many of us are regularly taking the train down to London to appear in such cases, often for regional clients. The renewed investment in and commitment to the regional Business and Property Courts will allow our clients to obtain reliable access to high quality local justice that is also convenient and efficient. It is equally good news for the regional Bar and for regional law firms who can litigate even their clients’ most complex and valuable cases in Birmingham, Manchester, Leeds, Bristol or Cardiff.
Contributor Ed Pepperall QC is Chairman of the Midland Chancery & Commercial Bar Association
Simple rebrand or first step to a modernising merger? Don’t underestimate the significance of the new Business and Property Courts, argues Ed Pepperall QC
It all started in Birmingham.
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