Meet the Judges: A summary of the event on 8 June 2017
Introduction of the panel
HH Judge Davis-White Q.C. is our new Lead Chancery Judge and will sit in Leeds and Newcastle. Judge Davis-White was formerly a highly regarded chancery silk practising from 24 Old Buildings and before that 4 Stone Buildings in Lincoln’s Inn. He is a former chairman of the Chancery Bar Association. He is also co-author of Directors’ Disqualification and Insolvency Restrictions and Kerr and Hunter on Receivers
Judge Davis-White Q.C. was appointed to the bench as Commercial Court Judge in the British Virgin Islands where he sat before taking up his appointment on the North Eastern Circuit.
HH Judge Klein was a member of Enterprise Chambers in Leeds for over 20 years and had a very successful chancery practice. He was described in the directories as an “outstanding academic lawyer and advocate”.
Judge Klein sat as a Recorder and as a Deputy High Court Judge before being appointed as the Lead Mercantile Judge and a Chancery Judge on the North Eastern Circuit in February this year.
District Judge Pema was a barrister at Zenith Chambers, being called to the Bar in 1995. He was appointed as a Deputy District Judge in 2010 and a full time District Judge in 2013. He specialises in Chancery work.
From the Leeds Court Service
Deborah Smith – Deborah is the Delivery manager at Leeds Combined Court Centre. She manages four team leaders, including Richard Marsland, in the Chancery /Circuit Judges’ section and the District Judges’ Listing Section, as well as in the bailiff team.
Richard Marsland – Richard is the Chancery/Circuit Judges’ Section Manager. He manages a team of 10 whose aim is to achieve the smooth running of the work involved within the Specialist jurisdictions.
Richard is also responsible for setting the Civil Circuit Judges’ itineraries. He also captures statistical data in relation to the Specialist Jurisdictions.
HHJ Malcolm Davis-White QC (JDW)
JDW introduced himself as one of the three specialist Judges in the Chancery Division on the North Eastern Circuit. As a comparative outsider he is anxious to learn about local needs. Also as a comparative outsider he may be able to assess the quality of what is being achieved by reference to experience elsewhere. So far he has been impressed at all levels in the North East: cases, staff and the legal professions.
Administrating justice is like a three legged stool which is only as strong as its weakest leg: The three legs are the legal professionals (the legal practitioners are of the highest quality in Leeds and North East generally); the Court staff (the Leeds staff had been described to him as the “Rolls Royce of legal staff” and it is acknowledged that they play a key role with both the public and the judiciary – if there is a problem let the staff know); and the Judges.
JDW discussed the role of Leeds’ District Judges. An immense amount of work is dealt with by the District Judges and he explained that Chancery work is concentrated between the four of them that specialise in Chancery work, which ensures efficiency: DJ Goldberg; DJ Troy; DJ Pema and DJ Kelly.
In the first instance, JDW requested that practitioners should raise any issues that they have with the Court staff themselves before escalating the matter to him or HHJ Jonathan Klein.
JDW then discussed the next level of specialist Judges in Leeds (HHJs Raeside, Klein and Davis-White) and explained how the three of them work closely as a team with their work ticketed across the three specialist areas: Chancery, Mercantile and the TCC. JDW is the lead judge for Chancery; JK is the lead for Mercantile and MR is the lead for TCC.
All three divisions are to be brought under the umbrella of the Business and Property Court, as Leeds is one of the regional courts where this new branding will be launched.
JDW discussed the judicial and government commitment to financing the specialist civil courts and to bringing work to the regions – there is a commitment from London to bring more regional work back to the regions. JDW commented that often regional work is heard in London by regional judges and explained that there is a perceived issue with resources (technical and judicial) in the regions but these resources are promised and lawyers should be reminded of the cost and efficiency aspects of the regional courts.
The mission statement of the new judges is to assist in bringing about more communication between the three legs of the stool to maintain and improve Leeds’ pre-eminent position for just dispute resolution.
HHJ Jonathan Klein (JK)
JK discussed his role in the Mercantile Court.
Briefly mentioned the launch of the Business and Property Court on 10 July 2017 and advised attendees to attend the launch at BPP to learn more. It will be attended by the Chancellor and the Vice Chancellor.
Explained that the Mercantile Court is expected to change its name, probably to the Commercial Circuit Court, to better reflect its work and its connection to the Commercial Court in London. No reason to be anxious about the BPC launch. For the present, the practices and procedures of the Mercantile Court will remain the same.
Discussed significance to Leeds of a strong commercial sector e.g. £975k of inward investment; 6% growth in last 5 years and predicted growth 8.8% in the next five years. Pointed out that Mercantile Court could support the commercial sector, in particular by providing a high quality and efficient dispute resolution centre for local SMEs, and that a strong Mercantile Court could generate further growth in the commercial sector e.g. in the legal market.
JK explained the unique feature of the Specialist Courts in Leeds is that they operate on a mixed list basis which Lord Justice Briggs has described as a “model for other regional centres.” Would encourage people to use Mercantile (sometimes practitioners use Chancery and miss out on the some of the beneficial practices of the Mercantile Court).
JK discussed the fact that, in the Leeds Mercantile Court (which can be used for a variety of commercial or business matters in the broadest sense), in an appropriate case a claim can be dealt with at CMC and interlocutory stage by the ultimate trial judge and that this, combined with listing arrangements and the fact that all interlocutory work is carried out by a section 9 judge and most likely by one of the three specialist judges in Leeds, is likely to result in a speedy resolution.
When Lord Justice Briggs visited Leeds he said that cases with a regional connection should not be issued in London but in the regional courts like Leeds. What do the Judges understand is meant by a “regional” case?
“Watch this space.” The CPR and the PDs are likely to be changed to make it clearer a) where cases should be listed; and b) where cases should be transferred back to if required.
There has to be a distinction between what is “regional” and what is regionally convenient for you/your client(s).
With the flexibility of where judges now sit and modern technology there is no reason why cases cannot be issued locally if issuing locally is convenient.
Does anything need to change for the Leeds Court to manage larger cases? What would you say to practitioners deciding where to issue a large commercial claim?
Lord Justice Briggs’ report encouraged London Courts to transfer claims to the regions.
Systems are in place and are in the process of being enhanced (e.g. by the creation of the BPC) which will assist regional courts. It is to be noted that the Vice-Chancellor, a High Court Judge, is already available to try cases and hear applications. If a case merits it, the Chancellor will look favourably on a High Court Judge coming up to Leeds specially to deal with a case. The Judge in charge of the Commercial Court has indicated that he will consider favourably a request for a Commercial Court Judge to deal with a commercial claim in Leeds in a case which merits a Commercial Court Judge.
Lord Briggs’ report acknowledged that the use of IT will make it easier to manage claims remotely (i.e. video conferencing).
On the Leeds Law Society website we will have a page which will be updated regularly in order to provide current hear-by dates. The Leeds Mercantile Court hear by dates compare very favourably to the hear by dates in the Commercial Court or Chancery Division in London
JDW added that it is possible, in the Chancery Division in London if a case merits it, for it to be dealt with by the same Judge throughout. That ought to be achievable in Leeds too.
Whilst we all have a vested interest in a strong court reflecting that “no case is too big to be resolved in the regions” are the judges confident that there will be the necessary investment in infrastructure to make this possible or does the disparity of technology between the Rolls Building and the District Registries (for example electronic court files and the ability to use electronic hearing and trial bundles) risk creating a two tier court system?
Deborah Smith (DS):
DS explained that electronic filing and CE-filing may come to Leeds. DS discussed the ‘period of reform’ that HMCTS is currently going through and that the aim is for the Digital Case System that is currently used in criminal cases being adopted across the Court system (i.e. a move towards a paperless system).
In terms of whether CE-filing will come to Leeds, DS has asked the head of the Civil, Family & Tribunal whether Leeds can be a pilot site and it was confirmed that Leeds will be put forward if the opportunity comes up.
We shouldn’t assume that London is always a shining example of advanced technology when it comes to the Court facilities (for example, mobile phone coverage has only recently become available in the Rolls building).
District Judge Anesh Pema (AP):
AP agreed with JDW.
The advantage of CE-filing is accepted but there is a difference between this and the use of e-documents for hearings. In London, practitioners still have to file paper bundles for hearings. Where electronic trials take place that is arranged by the parties themselves providing the hardware and software.
JK said he was trying to encourage the early introduction of CE-filing in Leeds but, whenever electronic filing is introduced in Leeds, it is likely that paper hearing bundles will still be a requirement.
It will be easier to press for a pilot scheme in Leeds for CE-filing if the nature and the volume of the work justifies it.
Richard Marsland (RM):
DQs and orders should be sent to firstname.lastname@example.org
Correspondence regarding trials, including, for example, skeleton arguments, and regarding appeals should be sent to email@example.com
If in doubt, Richard advised practitioners to look at https://www.justice.gov.uk/ or at PD5B in terms of how to format emails. If sending by email, there is no need to send a hard copy as well as this will result in duplication. Emails should not exceed 10mb (or, 50 pages).
Request that when submitting consent orders, practitioners should submit a pdf with the signatures on and, importantly, also a word version without any signatures to enable the Court to amend any orders more easily. In any event, a word version of all draft orders should be submitted.
JK also asked practitioners to ensure that they follow the Chancery Guide when submitting all orders and to ensure that the orders contain the correct provisions for service. This will become more significant in the upcoming months. Additionally, in the future only one copy of an approved order will be sent out for service.
IT connectivity in the Leeds Court
Explained that there is wifi in all of the (designated) judicial areas.Confirmed that there are a large number of plug sockets in all of the specialist Court rooms.
Can you give a couple of examples of initiatives that you have introduced to improve case management and to make the most of the time available at the CCMC?
Have you experienced any particular issues with cost budgeting and are there any practical points that Court Users should bear in mind to make the process more effective (including whether costs draftsmen should attend CCMCs)?
Initiatives have been introduced to improve case management e.g. a standard index for CCMC bundles.
There was a cost budgeting pilot (which has recently expired but an application has been made to extend it. It has since been extended for 12 months) which, if the court was satisfied that it was appropriate, enabled the parties, in effect, to dispense with the need for cost budgeting where both sides consented to it.
The major issue is the requirement for costs that are incurred pre-action to be separated out. For example, pre-issue and statements of case are separate phases and should be set out as such. The same applies to disclosure.
Reference was made to a self-calculating spreadsheet setting out the parties’ costs by phase created by LLS and the judiciary, which allows the Court easily to amend the costs budgets and review the overall costs allowed.
AP wants practitioners to be aware that when it comes to Precedent R, hourly rates and hours incurred are not a matter for discussion at that stage.
AP said generally he does not find that the attendance of cost draftsman at hearings as helpful. Costs draftsman should never attend Court alone – estimating and justifying future costs is for litigators only.
JK explained that within the Mercantile Court, three weeks after the filing of a (first) defence, a case will be referred by Court staff to him on paper.
JK will make a pre-CCMC order and will schedule a CCMC (if no application has been made by the parties). The pre-CCMC order will be detailed and include the steps the parties need to take.
If judicial input is required before the CCMC, the matter will be referred to JK so he can decide when any application should be heard. In any event, all applications will be referred to JK on paper to determine whether they ought to be disposed of on paper or, if not, when and how they should be listed.
If he is available, he aims, generally, to hear all interim applications and all CCMCs in the Mercantile Court. JDW is also available to hear Mercantile Court cases, as is Judge Raeside.
Leeds Court has said that they will do their best to accommodate “urgent” matters for Court Users in terms of listing. Please can you indicate what is considered urgent?
Like an elephant, you know urgent need when you see it. There is obviously a spectrum- i.e. if applying for an injunction – do you need it today, can the other side be notified and an interim regime be put in place by agreement to avoid the need for an urgent hearing that day or that week or until after a timetable for evidence has been complied with?
Bear in mind that the Court leans against without notice applications but if you need to see a Judge urgently then you can. We rely on the good sense of practitioners.
If possible, file a Certificate of Urgency as this will be helpful for the Judges, although appreciate that this is not always possible to do. A Certificate assists the Court Staff in identifying the urgency.
If an application is comparatively urgent and it is a DJ application or a DJ otherwise has jurisdiction, practitioners can contact RM or the Chancery staff and ask for the application to be referred to the docketed DJ. If these options are not possible, one of the four specialist Judges will consider hearing the application on an urgent basis regardless.
Accessibility is good in Leeds.
Can injunctions be issued elsewhere? If so, can the case then be brought back to Leeds?
If there is genuine urgency you can always turn up and you will be heard. If, for example, he was asked to deal with an urgent hearing of a Leeds matter when he was sitting in Newcastle he would expect it to be issued in Leeds but if for some reason it was issued in Newcastle he would not foresee any grave difficulty in transferring the case to Leeds. He referred to a Newcastle case where such a transfer back to Newcastle had recently occurred.
Bringing claim for a money claim, court rejected as it had to be sent to money court, will this apply to money business court?
Did they go to the correct counter? Specialist work cannot be issued at the county court counter, and if you go to that counter, it is likely you will be referred to the bulk centres.
If the claim is issued in the High Court then you won’t have that difficulty (must be above the lower threshold value).
Ask to speak to Chancery staff, just in case the county court staff were not clear on the issue. The specialist staff will ensure you end up with the right result.
Will there be fixed recoverable cost capping in the Mercantile Court?
A cost capping pilot is to be introduced in London / Manchester / Leeds.
The pilot will last for two years, and is being overseen by LJ Jackson as part of the cost review.
The final details have not yet been announced, but it is intended that it will offer a capped costs regime for appropriate cases in the three specialist courts for cases under £250K. It is intended to be an entirely voluntary scheme, because we want to see how successful it will be. At present, he anticipates it being launched in October.
Could some long term thought be given to moving these courts away from the crown court building?
We can all say that these comments are helpful to us in making out a case for such change.
All staff realise there is an expectation that people want a better building.
We are alive to your concerns, but there are the obvious constraints.