England and Wales High Court (Technology and Construction Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT

		St. Dunstan's House 133-137 Fetter Lane London EC4A 1HD
		12th March 2008

Mr Justice Coulson:

Introduction

1. This is an application by the Second Defendant to transfer this action from the Cambridge County Court to the Technology and Construction Court in London. The application is supported by all the other remaining Defendants, namely the Fifth, Sixth and Seventh Defendants. The application is resisted by the Claimants, who have provided a detailed letter through their solicitors setting out their objections to this course. That letter is dated 7th March 2008 and I have necessarily considered it in detail in reaching the conclusions set out below.
2. Applications to transfer cases into the Technology and Construction Court are not uncommon, but there remains a certain amount of confusion and uncertainty as to both the procedure to be adopted and the principles which govern such an application. That confusion has been apparent in this case. For those reasons, I hope that it will be helpful, once I have summarised the nature of this claim, to set out both the correct procedure on a transfer application, and the relevant guidelines that will govern whether or not such an application is successful.

The Nature of this Claim

3. The action started in January 2006. It concerns three properties at 247, 249 and 251 Turpin Avenue in Romford, owned respectively by Mr and Mrs Collins, Mr and Mrs Winkle and Mr Lacey and Miss Wilson. I shall refer to them as "the Claimants". I note that, sadly, since these proceedings started, Mr Winkle has died and his wife now brings their claim both in her name and as the representative of his estate. The houses were built in about 2000. The principal complaint is that their foundations were inadequate and that, in consequence, they have suffered from heave damage.
4. The Second Defendant is the building contractor who built the houses. All of the Claimants make claims against him for breach of statutory duty and/or contract. Further, all the Claimants make claims against the Sixth Defendant, an architect engaged by the Second Defendant, who signed certificates of practical completion. It is alleged that those certificates impliedly represented that the houses had been constructed to a reasonable standard and that they were reasonably fit for habitation. Similarly, all the Claimants make claims against the Seventh Defendant, an engineer employed by the Second Defendant. Those claims are also put by way of breach of statutory duty. In addition, the First and Second Claimants bring claims against the Fifth Defendant, who acted as their solicitors for the conveyancing of their property.
5. There are disputes as to the adequacy of the design and construction of the ground beams, which disputes require the consideration of detailed geotechnical and engineering calculations. There are also disputes on causation and as to the scope and applicability of the Defective Premises Act 1972. In addition, there are Defences which seek to rely on the Limitation Acts. The overall claim is said to be worth about £300,000 and the schedule of loss that was served last year identifies particular claims worth up to £250,000, with some heads of claim still not finalised.
6. A very large number of pleadings have been exchanged between the parties. Miss McCafferty, who appears for the Second Defendant this morning, has explained that this has been largely due to the difficulties that the Defendants have had in obtaining clear particulars from the Claimants as to the detail of their case. It appears that this may have been because the action was started at a stage when the problems at the properties were still being investigated.
7. Disclosure has taken place. However, the pleadings have only just closed and there are, as yet, no witness statements and no experts' reports. As to this latter point, I note from the existing court orders that permission has been given to the parties to call architectural, engineering and valuation expert evidence. Miss McCafferty estimates that there may be seven different experts already instructed, with the scope for at least two more (although I would be hopeful that, with careful case management, that number will reduce). There is currently a further CMC fixed for June 2008. There is currently no provisional date for the trial of the action.

The Application to Transfer

8. On 25th February 2008, the Second Defendant issued an application in the TCC to transfer the case from Cambridge County Court to the TCC. Notice of that application was given in writing to Cambridge County Court on 26th February. The Claimants subsequently took the point that the application was misconceived because it should have first been made to the county court in question.

Correct Procedure on Transfer

9. Section 41(1) of the County Courts Act 1984 provides that:

"If at any stage in proceedings commenced in a county court … the High Court thinks it desirable that the proceedings, or any part of them, should be heard and determined in the High Court, it may order the transfer to the High Court of the proceedings or, as the case may be, of that part of them."

10. Generally, an application to transfer from a county court to the High Court will be made under CPR 30.3. An application to a specialist list (such as the TCC) will be made under CPR 30.5. In each case, the application to transfer is made to the receiving court (in this case the TCC), with notice to the relevant county court. That is what happened here. Accordingly, I consider that the Claimants' solicitors were wrong to suggest that the application had first to be made to the county court pursuant to CPR 30.2(3). That rule is concerned solely with transfers from one county court to another. It is, therefore, of no application here.
11. Accordingly, the Second Defendant has followed the correct procedure by making this application on notice to the TCC. The next question is what principles and guidelines are relevant to the substance of that application.

Relevant Principles on Transfer to the TCC

12. The matters which the court hearing the application to transfer must consider are set out in CPR 30.3(2). The first five considerations there listed will be of particular relevance to any application to transfer to the TCC. They are:

"(a) the financial value of the claim and the amount in dispute, if different;

(b) whether it would be more convenient or fair for hearings (including the trial) to be held in some other court;

(c) the availability of a judge specialising in the type of claim in question;

(d) whether the facts, legal issues, remedies or procedures involved are simple or complex;

(e) the importance of the outcome of the claim to the public in general."

13. There are no reported authorities dealing with the application of these principles to a transfer from a county court to a specialist list. Miss McCafferty has quite properly referred me to the case of Lumbermens Mutual Casualty Co v Bovis Lend Lease Ltd [2004] EWHC 1614 (Comm), a decision of Colman J. That case is also referred to at page 760 of the White Book 2007. However, it is concerned with a possible transfer between specialist divisions of the High Court and is, therefore, of limited application to the more straightforward kind of transfer application to a specialist list such as the present dispute. I note, however, that the approach adopted by Colman J in Lumbermens was based upon a general consideration of the matters in CPR 30.3(2) with an emphasis on the overriding objective set out at CPR 1.1.
14. In considering the matters noted in CPR 30.3(2) on an application to transfer an existing county court action to the TCC, the TCC will tend to adopt the following approach:

(a) Does the dispute arise out of or in connection with one of the types of claim which paragraph 2.1 of the Part 60 Practice Direction identifies as being a claim suitable for the TCC? The TCC will consider this question broadly, on the basis that paragraph 2.1 is a list of examples only. A dispute which is, or arises out of, or has a connection with, one of the types of claim identified there will therefore be considered by the TCC as being appropriate (subject to the other factors) for possible transfer.

(b) If the dispute is, or arises out of, or has a connection with, one of these types of claim, does the financial value of that claim and/or its complexity mean that, in accordance with the overriding objective, the case should be transferred to the TCC? Financial considerations can be of some importance, but what will often be critical is the view that the court takes of the complexity of the issues in the action itself. This was properly recognised by Miss McCafferty during this application. It seems to me that the more complex the dispute, the greater must be the benefit of transferring the action to the TCC.

(c) Do questions of convenience to the parties have any effect on that decision? Questions of convenience can be important, but in the usual case, where the county court and the relevant TCC are not very far apart geographically, they may not be of any great significance. However, the court must also bear in mind wider factors such as, for example, the fact that High Court cost levels will be higher than those in the county court.

15. Working through that approach in the present case, I have reached the following conclusions:

(a) Type of claim

This is a building dispute, as identified in paragraph 2.1(a) of the Part 60 Practice Direction. It is in many ways a prime example of the sort of work habitually undertaken in the TCC. In addition, there are a number of related claims for professional negligence, which are plainly caught by the words of paragraph 2.1(c) of the Practice Direction. This is, therefore, precisely the sort of claim which, subject to the other factors, ought to be transferred into the TCC.

(b) Financial value

As I have noted, the claim is said to be worth about £300,000. That is obviously well over the High Court threshold. The TCC will not automatically accept transfers of a claim from a county court simply because it is over the £50,000 lower limit for the High Court. On the other hand, the higher the value of the claim, the greater must be the prospect that the TCC would accept such a claim. It is a yardstick to measure importance and complexity, but in my judgment it is not more than that.

(c) Complexity

I accept Miss McCafferty's submission that complexity will be the critical factor in the vast majority of transfer applications. It certainly is here. I consider that, on any view, this is a complex case involving, as it does, interrelated issues of law, geotechnics and standards of care and professional duty. I have summarised those complexities at paragraphs 5, 6 and 7 above. On the basis of that summary, it seems to me that this is overwhelmingly a case for transfer. I should also note that the Claimants' solicitor's letter of 7th March does not seek to make any suggestion to the contrary.

(d) Convenience (general)

As discussed with Miss McCafferty during argument, this does not seem to me to be a particularly strong factor in the present case. Again, it is, in my experience, rare for pure questions of convenience to be of great significance. That is because it is usually the case that the county court, and the relevant regional TCC centre which might be the subject of the application to transfer, will not be very far apart geographically. That is the case here. Most of the parties live in and around Romford, and the County Court in Cambridge and the TCC here at St. Dunstan's House are both about equidistant from Romford. Accordingly, in this case, I do not consider that pure questions of convenience are of any real significance. Both courts are equally convenient and/or inconvenient to the parties.

(e) Convenience (costs)

It seems to me that the question of costs is a matter which the court should always bear in mind on a transfer application because of the potential costs consequences of going from the county court to the High Court. In the present case, the Claimants bring these proceedings by way of a subrogated claim, and it appears that their costs are being met by the insurers. That, so it seems to me, is a relevant factor. Furthermore, more generally, I consider that a specialist court like the TCC ought to be able, through careful case management, to reduce the costs that the parties might otherwise incur. Accordingly, it does not seem to me that the transfer of this case to the TCC would significantly increase the costs of the parties. Indeed, I would be hopeful that the transfer might actually reduce those costs.

16. I did consider whether the fact that these proceedings had been extant for some time meant that it could be said that the application to transfer was made too late and that it would be unfair, in view of the Claimants' opposition to the application, for the application to be allowed over two years after the proceedings started. However, I put that point to Miss McCafferty and she has demonstrated that in this case, although it has been going on for some time, the action is still at a relatively early stage. As I have already said, there are no witness statements and no experts' reports. In addition, the pleadings have only just closed. That is a reflection of the delays which have occurred as a result of the historical problems with the lack of particularity in the Claimants' case. In those circumstances, it seems to me that it could not be said that this application was made too late.
17. For all those reasons, therefore, and in particular because of the types of claim being made in this case, their value and, in particular, their complexity, I am in no doubt that this action should be transferred to the TCC in London.
18. It is important to record that no part of my analysis should be taken in any way as a criticism of the conduct of this case thus far by Cambridge County Court. I note that at some county courts there will be a specialist TCC judge or judges, and that might well be a factor on any application to transfer out of such a court. However, that does not arise here because I am told that there is no such judge in Cambridge. Furthermore, in busy county courts such as the one in Cambridge, there is a huge range of work to be done, and considerable pressures on the judges and their lists. They are not always able to allow parties in a long running and complex case like this all the court time, particularly in respect of case management, that in other circumstances, they would be keen to offer. In the right case, a specialist court like the TCC is able to provide a service which can meet the particular needs of the parties in accordance with the overriding objective.
19. For all those reasons, therefore, I consider that this case should be transferred from the Cambridge County Court to the TCC in London. It will be assigned to one of the Senior Circuit Judges here.