YVONNE FORTT (R on the application of) v FINANCIAL SERVICES COMPENSATION SCHEME LTD

This is a judicial determination on the papers, but where it is, in my judgment, appropriate to give reasons by way of a short judgment. This is a claim for judicial review in which a minded to transfer order (“MTTO”) was made on 10 December 2021. The MTTO is a mechanism by which the Court invites and considers “the views of the parties” before any finalised decision to transfer the claim: see the Administrative Court Judicial Review Guide 2021 at §7.7.5. The background is this. The Claimant had filed the claim in London. She had answered “no” to this question in Form N461: “Have you issued this claim in the region with which you have the closest connection?” She then gave these reasons:

The Claimant does not object to the transfer to Manchester. She lives in Blackpool (FY2). Her solicitors APJ Solicitors are based in Warrington (WA4). Her barrister (Mark Harper QC) is based in Manchester (M3). The Defendant opposes transfer, inviting the Court to retain the proceedings at the Administrative Court in London where the claim was originally commenced. The grounds are set out in a helpful letter from Bevan Brittan, the Defendant’s solicitors. They call for careful examination. They are as follows:

The Claimant had confirmed in the Claim Form that the proceedings had deliberately been issued in the Royal Courts of Justice and that she considered that it should stay in London. Consideration should be given to the views of both parties before determining that the claim should be transferred.

Transferring the proceedings to a location away from the Defendant’s offices in London would increase the Defendant’s costs of responding to the litigation and would adversely impact on its attempts to comply with its statutory obligations, including (by s.224ZA of the Financial Services and Markets Act 2000) to have regard to the need to ensure efficiency and effectiveness in the discharge of its functions, reflecting the fact that the Defendant is funded by way of levy on active financial services firms.

Since the Defendant (based at E14) its solicitors Bevan Brittan (based at EC4M) and its Counsel James Strachan QC (based at WC2A) are based in London, it follows that all of the key personnel involved in this case for the Defendant are in London. There would be a significant costs impact in having to travel to Manchester for a substantive hearing, including potentially having to source overnight accommodation for any hearing listed more than one day. The travel requirement could impact on availability dates for the Defendant’s Counsel and solicitors. The overriding objective (dealing with cases justly and at proportionate cost) would best be furthered by the claim remaining in London for case-management and determination.

Given that the Administrative Court (and Court of Appeal) in London has, in various cases referenced in the Defendant’s Summary Grounds of Resistance, been engaging with claims arising from similar subject matter – regarding SIPP Operators’ obligations and potential liability to their clients, including when acting on an execution-only basis – there is a body of knowledge amongst many of the judges sitting at the RCJ which would be beneficial and ensure efficiency at the permission stage and any substantive hearing.

Practice Direction 54C of the Civil Procedure Rules “is intended to facilitate access to justice by enabling cases to be administered and determined in the most appropriate location” (§1.1) and explains that the “administration of the Administrative Court is organised by geographical area”; that, “in addition to the central Administrative Court Office at the Royal Courts of Justice in London, there are Administrative Court Offices in Birmingham, Cardiff, Leeds and Manchester” (§1.2(1)); and that (so far as concerns Leeds and Manchester), “claims on the North-Eastern Circuit are administered from (and should be filed in) Leeds” and “claims on the Northern Circuit are administered from (and should be filed in) Manchester” (§1.2(1)). The Practice Direction identifies this “principle” (§1.2(2)): “The Administrative Court applies the principle that where a claim has a specific connection to a region (by subject matter, location of the claimant or defendant or otherwise) it should, if at all possible, be administered and determined in that region.” As the Practice Direction explains (§2.1), leaving aside “excepted classes of claim” (§3.1), “proceedings should be commenced at the Administrative Court office for the region with which the claim is most closely connected, having regard to the subject matter of the claim, the location of the claimant, or the defendant, or otherwise: see further … paragraph 2.5”. Paragraph 2.5 is then in these terms:

In my judgment, the Administrative Court in Manchester (Northern Circuit) is the region with which this claim has the closest connection, having regard to (a) the subject matter of the claim, (b) the region in which the Claimant resides and (c) the region in which the Defendant is based. In my judgment, having regard to all the circumstances, it is that region which provides the most appropriate location for the administration and determination of the case. I will explain why. I accept that the following are all basic, relevant features which would support London as a venue: London reflects “the region in which the Defendant … is based”; London reflects “the region in which the legal representative” – solicitors and Counsel – of the Defendant are “based”; there is the “ease and cost of travel to a hearing” in London rather than Manchester. Having said that, the train from London to Manchester is a little over two hours. Moreover, Manchester reflects “the region in which the Claimant resides”; Manchester reflects “the region in which the legal representative” – solicitors and Counsel – of the Claimant are “based”; and so there is the “ease and cost of travel to a hearing” in Manchester rather than London. The Defendant’s solicitors describe people travelling to Manchester and possibly needing to stay overnight. They also emphasise the statutory duty to have regard to the need to ensure efficiency and effectiveness in the discharge of its functions. I have naturally had regard to the overriding objective (dealing with cases justly and at proportionate cost), and to CPR 1.1(2)(b) (saving expense). But it is relevant that costs are incurred on both sides, by any necessary travel or accommodation. And there is this same symmetry as to the overall burden of costs (whether recoverable or irrecoverable). There is no reason why cost and travel should favour one party (a public authority defendant) over another (a private individual claimant). The fact is that the cost and travel considerations substantially cancel one another out. For, if the case is dealt with in London, the Claimant, her solicitors and Counsel would be making an equivalent journey the other way, with the equivalent needs. If the Defendant’s team would need to stay overnight in Manchester for a hearing there, then the Claimant’s team would need to stay overnight in London for a hearing there.

As Mr Lee observed, the Defendant is providing “a national service”. There is nothing, in my judgment, about the “national” nature or spread of a public authority’s work which necessarily indicates that the RCJ in London is the appropriate venue. The assessment of the appropriate venue is based on identifying the appropriate “region”: whether that is London or elsewhere. So, what links the Defendant to the RCJ is not that London is somehow a ‘national’ venue for ‘national’ public authorities, but that the RCJ is in the “region” in which the Defendant is located. The claim impugns a decision by the Defendant on its interim approach to claims under s.27 of the 2000 Act, in circumstances where Adams v Options UK Personal Pensions LLP [2021] EWCA Civ 474 is pending before the Supreme Court. The Claimant recognised that this issue “affects complainants throughout England and Wales”. That is a point about ‘national’ spread, of an effect which (most directly) is on the Claimant in Blackpool. Insofar as the Claimant’s “claim” is linked to a “region”, it is her region. It is the Claimant’s claim. The impact is primarily for her, where she is. The impact is spread among financial services firms (through the levy). There is a reason why, as a sensible starting-point, the Claim Form asks the Claimant about “the region with which you have the closest connection”. It is true, and relevant, that the Claimant’s Form N461 originally identified London. But having said that, and in light of the MTTO, the Claimant has not maintained her position and does not resist the transfer to Manchester, her regional Administrative Court.

There are other points about subject-matter. As the Practice Direction makes clear, it is important to consider “whether the claim raises issues sufficiently similar to those in another outstanding claim to make it desirable that it should be determined together with, or immediately following, that other claim”. The answer to that is ‘no’. The Defendant’s solicitors make a different point. They suggest there is, by reference to case-law as cited in the summary grounds, a “body of knowledge” amongst “many of the judges sitting at the RCJ” which would be “beneficial and ensure efficiency” at the permission stage and any substantive hearing. I have considered the summary grounds of resistance and the cases cited there. I have also considered the judicial review cases on Westlaw involving the Defendant. In my judgment, the point being made has been overstated. The three most recent judicial review cases on Westlaw involving the Defendant were decided by three different Judges: two by relatively recently appointed High Court judges, and the third (a case cited in the summary grounds of resistance) by a Deputy High Court Judge. The Adams case was one decided in the Chancery Division, and by a Deputy High Court Judge. The regional Administrative Court has a team of ticketed specialist judges – many of them with cross-over expertise in commercial and regulatory work – well able to deal with the issues which arise in judicial review cases involving the Defendant. Added to that, there are – each term – visiting High Court Judges sitting in the regional Administrative Court, who are the very same personnel who would be allocated these cases in the RCJ. Having considered the nature of the claim, I can be confident that there will be suitable knowledge and experience, no injection of inefficiency, and no injection of delay. Finally, as Mr Lee pointed out, the use of the regional Administrative Court – including in the present case – makes best use of court resources and serves not to over-burden the RCJ. The Administrative Court in Manchester has the capacity and resources, alongside its workload, to determine the claim in an appropriate time frame. For all these reasons, I have concluded that this claim should be transferred to be determined in the Administrative Court in Manchester.