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

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/03/2010

Mr Justice Edwards-Stuart:

Introduction

1. This action was started in the Mercantile Court in the Bristol District Registry. The claim arises out of a contract for the provision of software by the Claimant ("CFH") to, in effect, the Second Defendant ("NAGE"), although CFH was in fact a subcontractor to the First Defendant ("OCE").
2. NAGE has applied to this court, the TCC, for the action to be transferred to the TCC in London. It relies on the subject matter of the dispute being one that is peculiarly within the experience of the TCC judges in London; the size, complexity and importance of the case - which it says justifies listing before a High Court Judge; and the fact that London is the most convenient and expeditious forum for the case to be dealt with, both in terms of the trial and case management.
3. Both the Mercantile Court and the TCC are a "specialist list" within the meaning of CPR 30.5(2) and (3). But these proceedings are also in a District Registry, namely Bristol.
4. CPR 30.5(2) provides that:

"A judge dealing with claims in a specialist list may order proceedings to be transferred to or from that list."

5. CPR 30.5(3) provides that:

"An application for the transfer of proceedings to or from a specialist list must be made to a judge dealing with claims in that list."

6. Accordingly, in this case an application to transfer the claim from one specialist list to another specialist list can be made to a judge dealing with claims in either list: see NATL Amusements (UK) Ltd & others v White City (Shepherd's Bush) Ltd Partnership & others [2009] EWHC 2524 (TCC), Akenhead J. This application could therefore be made either to a judge dealing with claims in the Mercantile list in Bristol or to a judge dealing with claims in the TCC list in London.
7. But as I have said, the application before me also involves the transfer of the claim from the Bristol District Registry to the Royal Courts of Justice in London. An application to do that must be made under CPR 30.2(4). CPR 30.2(6) provides that an application made under paragraph (4) must be made to the District Registry in which the claim is proceeding.
8. The difficulty with this application arises from the fact that both CPR 30.2 and CPR 30.5 are engaged at the same time. Since under CPR 30.5 an application for transfer must be made either to a judge who deals with claims in the specialist list to which the proceedings are to be transferred or to a judge who deals with claims in the specialist list from which the proceedings are to be transferred, whereas under CPR 30.2 the application for transfer can be made only to the district registry in which the claim is proceeding, in my judgment the requirements of both rules can only be met if an application such as this is made to a judge of the Mercantile Court in the Bristol District Registry.
9. Two authorities have been cited to me, which for the sake of completeness I should mention at this stage, although it will be apparent from what I have already said that I have felt able to determine this aspect of the application with very limited reference to only one of them. The first is a decision by Ramsey J in Neath Port Talbot Borough Council v Currie and Brown Project Management [2008] EWHC 1508 (TCC). In that case there was an application under CPR 30.2(4) for transfer from a TCC list in the Bristol District Registry to the TCC list in London. Ramsey J heard the application sitting as a judge of the TCC in the Bristol District Registry. He held that the application had to be made to the District Registry. He observed, at paragraph 13 of his judgment, that: "The Judge in Charge of the TCC does not and cannot generally become involved in the allocation or assignment of cases which are issued at the court centres outside London".
10. The second case, which I have already mentioned, is the decision of Akenhead J in NATL Amusements (UK) Ltd & others v White City (Shepherd's Bush) Ltd Partnership & others. In that case there was an application made to the TCC to transfer to the TCC proceedings that were currently in the Chancery division in London. The application clearly fell within CPR 30.5. It was submitted that CPR 30.5(1) should be read so as to mean that it was a High Court Judge in the division in which the proceedings were currently listed who had the jurisdiction to order the transfer, rather than the High Court Judge of the division to which it was proposed that the proceedings should be transferred. Akenhead J held that the rule (2) should be read as meaning what it said when it referred to a power to order proceedings to be transferred "to or from" a specialist list by a judge dealing with claims in that list. It can be seen, therefore, that each case was concerned with a different situation and that in each case only one part of the CPR was engaged. Any perceived conflict between the two decisions does not exist. This case is different because both CPR 30.2(4) and CPR 30.5 are engaged.
11. I am gratified to note that HH Judge Havelock-Allan QC is recorded as having reached the same conclusion (see the e-mail dated 2 March 2010 from Bristol Mercantile Listing, at page 11 of exhibit "CJGH 2"). It seems to me that it is a matter for the Judge in the District Registry who hears the application to transfer the proceedings to the TCC in London to decide whether or not to raise the matter with the Judge in Charge of the TCC in London before transferring the proceedings (if that appears to be the appropriate course).
12. That said, in my view it would not be consistent with the overriding objective for me to refuse to entertain the application at all simply because it has been made to the wrong court when I have heard submissions from three parties over 2½ hours.
13. I therefore turn to the merits of the application.

The grounds on which the application is made

14. Mr Alex Charlton QC, who appears for NAGE, has submitted forcefully that this claim involves technical processes that the court will need to understand in order to be able to construe the contract under which those processes were required to be performed. He gives the following examples: What was actually done to the data by CFH? What level of storage capacity was contemplated by the scope of work contemplated by the original contract? What was meant by "printing to Docstore"? In addition, he submits, the court will have to understand the technical processes in order to assess the reasonableness of the charges claimed by CFH.
15. By contrast, Mr Gerard McMeel, who appears for CFH, and Mr Gavin Hamilton, who appears for OCE, each submits that this is really a dispute about the construction of the contract and whether or not certain work that was requested by NAGE fell within the original scope of work under the contract and subcontract.
16. The TCC is the appropriate court to deal with a claim that involves issues or questions which are technically complex or if a trial by a TCC judge is desirable: see CPR 60.1. The latter limb of the rule is, I think, intended to cover a case such as a typical building or engineering contract dispute involving questions of construction of a standard form of contract with which TCC judges will be familiar even though there may be no issues of technical complexity.
17. However, Mr Charlton submits that, in order to decide which is the most appropriate court to hear the claim, the court must consider not just the subject matter of the claim but also factors such as the convenience of the parties, costs, expedition (in terms of availability of hearing dates) and whether or not the claim should be heard by a High Court Judge.
18. Before I consider each of these particular factors I should decide what is the basis upon which and criteria subject to which the court should proceed in deciding whether or not a claim should be transferred from one court or list to another.
19. The most recent decision on this is that of Akenhead J in NATL. After considering the few relevant authorities, he said this (at paragraphs 33 and 34):

"33. In my view, the court is entitled to have regard to the relative appropriateness of the different Divisions or specialist courts within them in considering whether the transfer should be made. Thus, given the increasing familiarity with and even greater confidence of judges within the different divisions to deal with matters outside the traditional expertise of judges within their allotted divisions, the judge considering the transfer application should have regard to what is the more or most appropriate court to try the particular case. The judge considering the application must consider on the basis of the pleadings and other information put before the court upon what issues the bulk of the time, cost and resources involved in trying the case (and certainly the issues to be dealt with first) will be directed towards. Put another way, the Court needs to ascertain if possible where and within what areas of judicial expertise and experience the bulk or preponderance of the issues lies. If there is little or only an insignificant difference between the two venues, the discretion will generally be exercised in favour of the status quo to reflect the fact that a claimant is entitled to issue proceedings in whatever division it thinks fit and that either court is sufficiently experienced in addressing the issues. I would add that, where it is clear that significantly greater expedition will be achieved in one court rather than the other, that would be a material fact to be taken into account; expedition is a fact recognised within the overriding objective. On a similar basis, where it is established that costs will be less in one Division rather than the other, that is a material factor. In the context of the TCC, the Court should have specific regard to CPR Part 60 and the TCC Practice Direction with regard to the types of claim which are or may be appropriate for trial by the TCC. It is a reasonable presumption that, if the more or most appropriate court deals with the issues, there should be some saving in costs and time in disposing of the case.

34. In essence, in my judgment, the Court should take a pragmatic approach to determine the most appropriate venue, taking into account the experience and expertise generally of judges therein, and any time and cost savings to be achieved in one venue rather than the other. It is not the case that the party seeking transfer must establish that it would be inappropriate for the case to remain in the Division in which it was issued. However, if it was to establish that fact, that would be a very strong ground in favour of transfer."

20. With these observations I am in entire agreement. I would add only one thing by way of clarification. It seems to me that the suitability of the court, in terms of the expertise of its judges, to deal with the subject matter of a particular claim is the single most important consideration. There are many types of case where it is essential that the judge trying the case understands the practices, subject matter and terminology of the trade or industry concerned. That is why there are specialist lists. It is essential because fairness and the proper interests of justice require it. In addition, as Akenhead J has observed, the trial of a case by a judge with the appropriate experience is likely to result in savings of both costs and time.
21. It seems to me that it will be where the differences between the suitability of different courts for the particular type of case are less marked that factors such as expedition and the saving of costs may become decisive. It is with these principles in mind that I propose to consider the submissions made on this application.

The suitability of the TCC and the Mercantile Court

22. Mr Charlton submits, for the reasons that I have summarised above, that this is a case which involves issues or questions which are technically complex and that accordingly the TCC is the appropriate court. I agree with Mr Charlton in so far as I accept that the TCC is an appropriate court for this claim but, for the reasons that follow, I am not satisfied that - just in terms of the subject matter of the claim - the TCC is the only appropriate court or even the most appropriate court.
23. It is clear, for the reasons given by Mr Charlton, that any judge trying this case will have to have a reasonable understanding of the nature of the work that was the subject of the contract. This in turn will require an understanding of what was involved in the software processes that CFH was engaged to carry out. However, this is not one of those cases where the software didn't work and where the court is being invited to investigate why. Such cases are notorious for being extremely difficult and as requiring a high level of understanding of the technical issues by the trial judge.
24. From what I have seen so far I do not consider that this is a case where the degree of technical complexity is such that it cannot be handled by any judge who has experience of technical commercial cases, such as those involving the building of a ship or the construction of an oil refinery. Accordingly, I do not consider that it would be inappropriate for this case to be decided by a judge sitting in the Mercantile Court in Bristol. At the end of the day, it may turn more on the experience of the particular judge who is likely to be allocated to the case.

Costs and convenience to the parties

25. Mr Charlton submits that considerations of costs and the convenience of the parties point clearly to London as the most appropriate venue, both in terms of case management and the trial. So far as each of the parties is concerned, the position can be summarised as follows.
26. CFH are based in the west country near Bristol. Their solicitors and counsel are both based in Bristol, although the solicitors have an office in London. If the trial was in London some witnesses might have to stay in London if their evidence was likely to last more than a couple of hours. In any event they would incur the cost of travel from the Bristol area to London. In addition, if the proceedings were transferred to London CFH would have to operate away from its home base, which is always a disadvantage - particularly to a claimant. I find that the balance of convenience, so far as CFH is concerned, lies firmly with Bristol as the venue, rather than London.
27. OCE has instructed solicitors in Brentwood, Essex, and counsel based in London. However, I have been given very little information about the areas in which its witnesses are based and to what extent they might require accommodation in London if that was the venue for the trial. This is probably for the reason that OCE is content for the proceedings to remain in Bristol and consequently opposes the application to transfer the claim from Bristol to London. In spite of this, I am prepared to accept that London is probably a more convenient venue for OCE than Bristol, but since OCE is not asserting this to be the case, or at least not placing any reliance upon it, I cannot give this factor very great weight in NAGE's favour.
28. So far as NAGE is concerned, it is part of an international financial group and it is registered in London. However, its solicitors and nearly all of its witnesses are based in Glasgow, although its solicitors have an office in London near the Royal Courts of Justice. It is said that it is easier for witnesses to travel from Glasgow to London rather than Bristol because flights to London are far more frequent and the first flight of the day from Glasgow to Bristol does not arrive until 10:05 am, whereas flights to London arrive early in the morning so that witnesses can arrive in good time for any court hearings. I have to confess that I am somewhat sceptical about the latter claim when one adds the time necessary to travel from Heathrow to the centre of London. In any event, the unpredictability of air travel, even on internal flights, is such that I do not accept that an important witness should rely on travelling from Glasgow to London on the morning that he or she is to give evidence. In reality, whether the trial is held in London or Bristol, many witnesses will have to fly down the evening before the day on which they are to give evidence. I think that Mr Charlton realistically accepted this. He accepted also that accommodation is likely to be cheaper in Bristol than in London.
29. NAGE has instructed London counsel and has indicated that any expert that it instructs is likely to come from London also. I accept that if the trial was to take place in Bristol NAGE would have to incur the cost of setting up some form of temporary office. However, all in all, I do not consider that the inconvenience and additional cost to NAGE of having the trial in Bristol significantly outweighs the inconvenience and additional cost to CFH of having the trial in London.
30. So far as interlocutory hearings and case management is concerned, I consider that considerations of convenience and cost do not significantly favour London over Bristol. These will not usually involve witnesses and so the only factor is the additional costs incurred by the parties' lawyers having to travel from London to Bristol, or vice versa. Again, I consider that even if the balance did favour London, it would be only by a fairly small margin.
31. Overall, since any balance in terms of costs is probably only marginally in favour of London, I do not consider that the likely saving would be sufficient to justify depriving the claimants of their chosen choice of venue. So, in terms of costs and convenience to the parties, I consider that NAGE has failed to make out its case in favour of transfer to London.

Whether the case should be listed before a High Court Judge

32. So far as the Mercantile Court is concerned, there is no machinery by which a judge of the Commercial Court can sit in the Mercantile Court in Bristol. If the case is to be heard by a judge of the Commercial Court, it would have to be transferred to London. No party has suggested that this would be an appropriate course.
33. However, High Court Judges assigned to the TCC can sit on circuit in court centres where there is a TCC list. Indeed, in his judgement in the Neath Port Talbot case, Ramsey J made it clear (at paragraph 19) that where a TCC case at a Regional Centre merits case management or trial by a High Court Judge it will generally be more appropriate for a High Court Judge to case manage or try that case at a Regional Centre rather than for the case to be transferred to London.
34. Accordingly, if it is felt that a case in the TCC list in the Bristol District Registry should be tried by a High Court Judge, then one of the High Court Judges based in London can sit in Bristol to hear it. If the judge sitting in the Mercantile Court in Bristol were to conclude that this case (a) is an appropriate case for the TCC list, and (b) should be tried by a High Court Judge, he could simply transfer the case from the Mercantile list to the TCC list in Bristol and then refer the case to the Judge in Charge of the TCC list in London for a decision as to its future management and trial in accordance with paragraph 3.7.5 of the TCC guide. I should point out that in Bristol HH Judge Havelock-Allan QC is both a judge of the Mercantile list and principal judge of the TCC list.
35. Mr Charlton submits that this is a case which is important to all the parties and which involves difficult questions of both general law and construction of the contract, together with complex issues of fact. It is likely to be worth in excess of £3 million. In addition, he submits that the case has an international element not only because NAGE is part of an international banking group based in Australia but also because its subsidiary most closely involved in this case is a bank registered in Scotland.
36. My preliminary view is that this case probably is suitable for a High Court Judge, but that is not to say that the Mercantile Judge in Bristol is not also a perfectly appropriate tribunal. I consider that this is a decision that should be left to the Mercantile Judge in Bristol because he is best placed to determine which judge or judges might be available to try the case in Bristol and within what time frame. If he were to conclude that it is likely that an earlier trial date would be obtained if the case was to be tried in the TCC list by a High Court Judge from London, instead of remaining in the Mercantile list in Bristol, then that additional reason might justify transferring the case to the TCC list in Bristol and marking it as suitable to be tried by a High Court Judge following the procedure referred to in paragraph 34 above.

The disposal of the application

37. For the reasons that I have given I am not prepared to order that this case should be transferred from the Mercantile list in Bristol to the TCC list in London. I therefore refuse NAGE's application.
38. In relation to NAGE's submission that this case should be listed as suitable for trial, or case management, by a High Court Judge, I consider that this should be reserved to the Mercantile Judge in Bristol. If he considers, in the light of local judicial availability, that the case should be tried or case managed by a High Court Judge, then he can transfer the case from the Mercantile to the TCC list and then take the appropriate steps in accordance with paragraph 3.7.5 of the TCC guide.
39. I give liberty to all parties to raise this question before the Mercantile Judge in Bristol on 6 April 2010 when the case will be before him to deal with the various applications that have been listed for hearing on that date.
40. Since the application has failed, NAGE is prima facie liable to pay the costs (on the standard basis) of CFH and OCE in resisting the application. However, if NAGE considers that it has reasonable grounds for resisting such an order, in whole or in part, or wishes to make any submissions on the schedules of costs submitted by the other parties, then I am prepared to entertain written submissions from the parties. In this event, I give the following contingent directions:

(1) NAGE is to serve written submissions in relation to the costs of this application by 4 pm on Tuesday, 16 March 2010, to include any submissions on the quantum of the costs of the other parties.

(2) CFH and OCE are to serve written submissions in response by 4 pm Friday, 19 March 2010.

(3) NAGE is to serve any written submissions in response (but only if necessary) by 4 pm on Tuesday, 23 March 2010.

41. On receipt of any such submissions, I propose to determine any questions arising without a further hearing. However, if any party requires an oral hearing to deal with the question of costs, then it must say so in its submissions and I will direct a further hearing (but without there being any further submissions).
42. Failing the service of any submissions in accordance with (1) above, NAGE is to pay the costs of CFH and OCE on the standard basis, which I would propose to assess summarily in the amounts claimed, namely £7,162.80 and £4,094.29, respectively. Such costs to be paid by 4 pm on 31 March 2010.