Help! We are short of judges in the Technology and Construction Court (TCC). There are only four of them in London and they are dealing with nearly double the number of claims that twice as many judges used to handle seven years ago. The judges have responded by kicking a raft of cases of small value out of the High Court to be dealt with by the county court (see News).
Disputes involving sums under £250,000 will now not be eligible for being commenced or transferred to the London TCC. Claimants remain free to raise their actions in whatever court they feel appropriate, but the new rule – communicated in a TCC judgment rather than in a Practice Direction – warns that at the first case management conference (CMC) the judges will have the right to send your too-small case packing.
The case that provided the occasion for announcing the new rule – West Country Renovations v McDowell [2012] EWHC 307 (TCC) – was a standard type of dispute over final account. The amount disputed was some £104,473.17 on a domestic apartment worth about £3 million in London SW3.
Akenhead J initially suggested at the first CMC that such a relatively small claim might be better heard at the London County Court. In his judgment the judge said that counsel ‘politely but forcefully’ argued that the case should stay where it was.
Counsel argued that the TCC was a victim of its own success – its case management practices and ability to secure reasonably early trial dates for a three day trial such as this one was well established. The county court, on the other hand, could not as readily find time for a three day trial within a year, or find time and early appointments for procedural applications as easily as the TCC.
Counsel also suggested that there was a good chance that the case would settle, and a transfer to the county court would ‘not particularly assist’ that process – at which point the judge could have been forgiven for wondering why the parties didn’t just get on and settle, and leave his busy court alone. Which is what he basically told them to do anyway, sending the case to the county court.
If a financially small case involves difficult points of law it will still be eligible to be heard by the London TCC judges. A non-inclusive list of other possible exceptions to the small size rule was provided by Akenhead J.
High Court judges consulted by Akenhead J before issuing this ‘practice statement’ are in agreement that this change has to be made in order to preserve the advances made in the years since the decision to staff the London TCC fully with High Court judges. Th e move was welcomed at the time, 2004, by solicitors, barristers and court users.
Senior circuit judges who were with the court before this change in 2004 stayed in post, but the last of them retired last year; it was they who handled the smaller value cases while the High Court TCC judges took on the meatier business. Having to focus on too many lower value claims would inevitably divert attention and undermine the efficiency gains and progress made, the judges feel. Expect an outcry soon from county court judges if they are suddenly swamped by a tide of construction related small claims.
Nick Barrett
Editor