Recent judicial moves to send cases back to the regions

Home comforts: recent judicial moves to send cases back to the regions

Introduction

We all know that London does not have a monopoly on legal expertise, yet so many parties continue to issue their cases in London on the assumption that it is only within the M25 that one can find the right Judges or Court staff to handle the big cases. That attitude is now, quite properly, under attack from the senior judiciary.

Having told practitioners, ever since the inception of the Business and Property Courts, that “no case is too big for the regions”, the Courts finally seem to be taking proactive steps to enforce that mantra. Solicitors should now be very wary of defaulting to issuing cases in London, and should instead plan the venue of their litigation based on the geographical ‘centre of gravity’ of the case.

The recent decisions

Mrs Justice Cockerill, the senior Commercial Court Judge, moved Kelly v Baker, a 3-week fraud trial worth tens of millions of pounds, from London to Birmingham, primarily on the grounds that the businesses on which the dispute centred were in the Midlands, and that most of the witnesses lived and/or worked in that area. The fact the defendants’ solicitors and Counsel were based in London carried relatively little weight, and the trial went ahead in Birmingham in May 2022. The Judge reiterated her view on sending cases back out of London to their ‘centre of gravity’ in a Commercial Court users’ meeting on 22nd May, commenting that the BPCs appear to be “moving away from a London-based paradigm”, and has said that she has been actively looking for other cases to move to more appropriate locations.

At the same time, Mr Justice Fordham in the Administrative Court has taken a number of judicial review cases issued in London and relocated them to Leeds (R ex parte Fajr Ellis; R ex parte Khyam) and Manchester (R ex parte Fortt), often in the face of opposition from London-based lawyers representing one of the parties.

But isn’t London always best?

There is no denying that there has sometimes been a (wholly incorrect) perception that the best and brightest specialist Judges will always be based in London. Whilst that is plainly wrong, a point made by Mr Justice Fordham in Fortt, in any event if the parties wish for a fulltime High Court Judge to hear the trial or any interlocutory application in a regional centre, the Courts will take steps to enable that; in line with that promise, Mrs Justice Cockerill travelled to Birmingham to hear the Kelly trial in person.

As well as the theoretical benefits of obtaining justice locally, there are many practical benefits too: • Waiting times for trials in London are often longer than in the regional BPC centres, so cases will make quicker progress. • If the witnesses and parties live and work near a regional Court centre, it will make it easier for them to participate in the whole of the trial without the disruption and cost of being away from home for long stretches. Lawyers may also find a less-stressed client to be easier to handle! • Greater use of regional BPC centres may also encourage more use of strong firms or Counsel based outside London, thereby inevitably reducing the client’s overall expenditure. • It may also make it easier for those peripheral to the dispute (for example, family members of the litigants) to attend the trial in the public gallery.

This facet of the justice system cannot be understated, particularly in some of the more contentious family-based disputes.

Practical steps to consider What does the future hold?

If the current swell of judicial opinion continues along the same path, parties can expect Judges to take a much more interventionist role when it comes to venue. Issuing in London because that is what the firm has always done, or because that is what the client wants, will simply lead to delay when the Judge at CCMC transfers the case elsewhere, whether you like it or not.

The court staff and judiciary at regional BPC centres are well aware of this turning of the tide, and are keen to make it a success for the parties. Even if you have had imperfect experiences before, you might find that if you try your local Court centre again, you may well be pleasantly surprised.

The recent comments from the judiciary suggest that the question of venue should ideally be raised at the CCMC, but there is nothing to prevent it arising at all times up to and including the Pre-Trial Review.

In order to instigate the discussion, the party suggesting a change of venue will no doubt wish to enquire as to the local court centre’s availability for any existing or proposed trial dates, and may go so far as to assist the opposing party’s legal team with suggestions for office space during the trial (if the opposing firm does not have a local office in that city). Any software or transcription service providers should be asked to confirm that they can set up in the proposed new venue, and the local court to confirm that they can safely host the relevant equipment and technology. Raising a change of venue without having these key matters in mind will be a risky strategy.

Ali Tabari

Ali Tabari is a specialist commercial fraud and insolvency barrister at St Philips Chambers. He was junior Counsel in Kelly v Baker before Cockerill J (judgment awaited).