Inter Court Transfers and Technology Court Claims

Inter-Court transfers, the process by which proceedings are moved from a superior to an inferior Court or vice versa, have often been resisted by those in the legal profession on the basis that they are not in keeping with the Overriding Objective to the Civil Procedure Rules (CPR). The Overriding Objective seeks to ensure that claims are dealt with justly, bearing in mind a number of issues including the complexity of the case, ensuring that a case is dealt with expeditiously and fairly and the need to allot each case an appropriate share of the Court’s resources, taking into account the needs of other cases. Such arguments are not always accepted and the Courts frequently order inter-court transfers where it is appropriate to do so.

 Inter-Court transfers are widely accepted to be a complex area of procedure, which is governed by statute, case law and the CPR. Sections 40 and 41 of the County Courts Act 1984 provide the legal basis for such transfers. In summary, section 40 confers upon the High Court the power to order that proceedings be transferred to a County Court and section 41 allows the High Court to order that proceedings, in the County Court, should be determined in the High Court. When considering whether proceedings should be transferred, the Court must have regard to the matters set out in CPR 30.3(2), which include but are not limited to the financial value of the claim and the amount in dispute, the importance of the outcome of the claim to the public in general and the availability of a Judge specialising in the type of claim in question. The latter can be said to be of great importance where the claim is within a highly specialised and complex area of law. Technology and construction claims fall within this description.

Technology and construction claims can be incredibly complicated and high value litigious matters and accordingly they must be dealt with in specialist Courts which have the knowledge, expertise and experience to best deal with them. Specialist Technology and Construction Courts (TCC) sit at the High Court, as well as at the District Courts of Birmingham, Bristol, Cardiff, Chester, Exeter, Leeds, Liverpool, Manchester, Mold, Newcastle upon Tyne and Nottingham. A specialist TCC Judge will usually be available at these Courts. In spite of this it is often the case that technology and construction claims are automatically issued in the High Court without due consideration being given as to whether this really is the most appropriate venue for the claim.

This situation arose in West County Renovations Ltd v McDowell [2012] EWHC 307 (TCC). The claim was for amounts allegedly owed under contract to the claimant, a construction company. The Defendants had engaged the company to work on a flat they owned and a dispute arose as to the total amount owed, in part as this significantly exceeded an agreed cap on costs. The total amount the construction company claimed it was owed was £104,000, a relatively small amount for a claim made in the TCC. At Case Management Conference the Judge suggested that the case should be transferred to the Central London County Court for trial before a designated TCC Judge at that Court. On the basis that the Technology and Construction Court in the High Court would best facilitate an early resolution to the matter, the parties resisted any transfer. They argued that the case was very likely to settle and a transfer to the Central London County Court was less likely to assist with the settlement. In the absence of a settlement being agreed, it was also submitted that a trial date in the High Court was likely to be available much sooner than one in the Central London County Court, and so the transfer would not be in the interests of concluding the matter expeditiously. In making his judgment that the case should be transferred as proposed, Mr Justice Akenhead dismissed these arguments on practical and procedural points. He held that the transfer was not likely to obstruct any settlement being reached and further that there was no reason to believe that a hearing date would not be available at the Central London County Court within the pre agreed timeframe set by the parties. Clarifying the area surrounding Inter-Court transfers within the TCC, Mr Justice Akenhead suggested that in general, claims for less than £250,000 should not be commenced in the Technology and Construction Court at the High Court unless there are compelling reasons to do so; for example where the case involves new or difficult points of law, is a test case or where the dispute has an international aspect. The financial limit, the Judge stated, should help to maintain the progress made and efficiency established by the Technology Claims Court at the High Court in the last 7 years. It should also alleviate the Court’s caseload, which has seen a 75% increase in new cases cases since 2004, thereby ensuring that the Court’s resources are appropriately allocated, taking into account the needs of other claims which are more complex and higher in value.

This case highlights the importance of commencing cases in the Court most appropriately placed to deal with the matter. Where this has not been done, the Court, it seems, will not hesitate to rectify this by transferring the case to a more appropriate venue.