Few would argue that the Commercial Court is in dire need of an overhaul to bring it into the 21st century. Jennifer Currie reports on the potential changes and the financial consequences of not getting them right
If television’s maverick judge John Deed was asked to share a toilet with eight other judges, preside over a long case in a badly heated, stuffy, cramped court room, with no IT equipment or refreshment facilities, and then consider his judgment in an office he could not swing his dog in, he would probably duff up the person responsible for the outrage and then drive off into the sunset without a second thought.
Although members of the real-life legal world are unlikely to react in this manner, it may have crossed the minds of those who work at the Commercial Court, who claim they have to endure such conditions every day.
Behind its gleaming reputation as the ‘jewel in the crown’ of the English judicial system lies a Commercial Court that has been described by those who know it as a “public disgrace”, a “shambles” and a “slum”.
Writing in The Lawyer last February, Mr Justice Colman, a senior judge at the Commercial Court, said that the Lord Chancellor should be “seriously concerned” that a court of “such immense international reputation” should be housed in such “disgusting premises”.
“Most of the courts are not large enough for heavy litigation, there are no permanent video-conference facilities, the entrance lobby is an extremely constricted area, the robing facilities for counsel are completely inadequate [and] several of the judges’ rooms are far too small,” he added.
Michael Brindle QC, chair of the Commercial Bar Association and a tenant of Fountain Court Chambers, says that users are often “horrified” by the working conditions. “People are unimpressed when they come to use it,” he adds. “Spending two weeks in there can be very exasperating.”
Brian Lee, senior clerk at 20 Essex Street, also fears that the UK will forfeit its reputation as a world leader in commercial litigation unless it invests in the sector, which incidentally brings in more than 800m of invisible earnings every year.
“It’s discouraging for foreign litigants to come over here and spend time shuffling around in corridors,” he argues. “It shouldn’t be allowed to continue.”
Daily life for Angela Hodgson, the Commercial Court’s listings officer, is very much complicated by the fact that the judges are based in a number of different locations.
“Having judges in two places means it’s very difficult to get files about and so there’s a big upheaval every time,” she explains. “Problems can also arise if there are two trials that require video-conference facilities, or over who should get the biggest courtroom.”
Much to the delight of commercial lawyers, the Lord Chancellor’s Department (LCD) has at long last taken the issue seriously and recently issued a set of proposals to bring the Commercial Court out of its time warp and into the 21st century.
Based on the findings of a report by independent management and IT consultant Cap Gemini Ernst & Young (CGEY), the LCD consultation paper asks for feedback on the accommodation and the administrative and technical requirements of a modern court.
The paper includes a number of controversial proposals, an example of which being that the Commercial Court should increase its fees or introduce a daily hearing fee. Mark Humphries, head of advocacy at Linklaters, believes that bumping up the costs of the Commercial Court will “cause a bit of hoo-ha”, as it could look as though the Government is trying to make users pay for what should be a state-funded service.
“The existing fees are about right,” he says. “An increase could be dangerous, as it may drive traffic away from the Commercial Court to arbitrators.”
Michael Briggs QC, a tenant at Serle Court Chambers, agrees that the Government needs to tread carefully in this area. “If people realise they can do it for half the price in New York, then they’ll go to New York,” he argues.
While few people disagree with the LCD’s assumption that the revamped Commercial Court should remain in London, opinions vary as to its actual location in the capital. According to the LCD paper: “Preliminary discussions have suggested that it would be beneficial for the specialist courts to be housed close to, or as part of, the Royal Courts of Justice, as this would emphasise the courts’ status and is also a convenient location for the City of London, and clients from abroad.”
Humphries, however, believes that the opportunity should be seized as a fresh start. “It did run though my mind at one stage that there could be a commercial court in Canary Wharf, but I’m not sure about that,” he says cautiously. “But if you were starting out with a blank sheet of paper and were asking me where the new court should be sited, I’d say somewhere in the Square Mile, towards insurance land, because the users of the Commercial Court are generally large City firms from EC2 or EC3.”
Discussions about the future face of the Commercial Court have inevitably led to renewed calls for a fundamental reform of the whole structure of the High Court. The CGEY report suggested merging all of the specialist courts, such as the Commercial Court, the Admiralty Court and the Technology and Construction Court, into one business division; this, though, has met with an outright rejection by the LCD.
But as the consultation paper is already regarded as long overdue by the vast majority of Commercial Court users, a softly-softly approach has been recommended to ensure that the proposals actually materialise from paper into spacious, well-equipped courtrooms.
“I get the feeling that the LCD isn’t thinking in a particularly radical way,” says Brindle. “I think we’ll get a new building rather than an overhaul of the whole discipline.”
While it is clear that a revamped Commercial Court, complete with enough toilets, offices, courtrooms and computers to satisfy a dozen Judge John Deeds, is a good solution to a highly complex problem, there will be some who feel that an important opportunity for change has been passed over.
But Humphries agrees that the most pressing issue is to make sure that the UK does not sacrifice its international reputation for excellence in the short term.
“We need to get premises and IT that are suitable for a dispute resolution system that’s in direct competition with international arbitration,” he says. “It’s high time we had better facilities all round.”