Neath Port Talbot County Borough Council v Currie & Brown Project Management Ltd & Anor.

The Defendants apply for these proceedings, currently in the Bristol Technology and Construction Court, to be transferred to London and to be assigned “HCJ” so as to be heard by a High Court Judge.

The claim was issued in the Bristol District Registry and concerns a waste to energy plant which the Claimant (“the Council”) has procured on the basis of a PFI project (“the Project”). The Council makes claims against the Defendants, who are consulting engineers, for rectification of an agreement, for damages in giving advice before the Council entered into the principal PFI agreement and for damages for services by the Second Defendant during the construction and commissioning phases of the Project.

The Project has not been a success. The issues in these proceedings relate to the cause of the various failings in the performance of the waste to energy plant and the damages which it is said have been suffered as a result of that failure to perform.

The Council claims some £54 million against the Defendants. I understand that there is uncertainty as to the Defendants’ insurance cover and that there is a separate dispute between the Defendants and their insurers. I am told that if the claim against them succeeds even to a fraction of the sums claimed, the Defendants are likely to be forced into liquidation.

The Council issued these proceedings on 30 August 2006, originally in the Chancery Division at Bristol District Registry. There is a procedural history but, in brief, the proceedings were transferred to the Technology and Construction Court (“the TCC”) on 14 September 2007 and has been case managed and dealt with by the principal TCC judge in Bristol, His Honour Judge Havelock-Allan QC. By an order dated 28 April 2008 a timetable has been set leading to a trial date in April and May 2009 for four weeks.

By letter dated 23 May 2008 CMS Cameron McKenna, acting on behalf of the Defendants, wrote to the TCC in London applying for two orders: first, that the proceedings should be transferred to the Technology and Construction Court in London at St. Dunstan’s House (“the London TCC”) and, secondly, that the case should be classified as “HCJ” so that it should be managed and tried by a High Court judge as opposed to a senior Circuit judge.

The first application was made under CPR rule 30.2(4) which provides as follows:

“The High Court may, having regard to the criteria in Rule 30.3, order proceedings in the Royal Courts of Justice or a district registry or any part of such proceedings (such as a counterclaim or an application made in the proceedings) to be transferred

(a)

from the Royal Courts of Justice to a district registry; or

(b)

from a district registry to the Royal Courts of Justice or to another district registry.”

The second application was an application for the matter to be classified as “HCJ”. The letter making the application referred to paragraph 3.7.2 of the TCC Guide, Second Edition, First Revision (“the TCC Guide”) which provides:

“When classifying a case “HCJ” or “SCJ”, the Judge in Charge will take into account the following matters, as well as all the circumstances of the case:

On 27 May 2008 M&A Solicitors, acting for the Council, wrote to the court pointing out that under CPR rule 30.2(6) the application should have been issued in the Bristol District Registry because that provision states that an application for an order under paragraph (4), which is the relevant paragraph, “must, if the claim is proceeding in a district registry, be made to that registry”.

The Council’s solicitors also pointed out that that application should have been made by an application notice under C.P.R. 23.3(1). They submitted that Bristol was the appropriate venue and in relation to the application to have the case classified as “HCJ” referred to paragraph 3.7.5 of the TCC Guide which provides:

“There are full time TCC judges at Birmingham, Liverpool and Salford (Manchester). There are principal TCC judges at other court centres outside London. TCC cases at these court centres are assigned to judges either (a) by direction of the full time or principal TCC judge or (b) by operation of a rota. It will not generally be appropriate for the Judge in Charge (who is based in London) to consider TCC cases which are commenced in, or transferred to, court centres outside London. Nevertheless, if any TCC case brought in a court centre outside London appears to require management and trial by a High Court judge, then the full time or principal TCC judge at that court centre should refer the case to the Judge in Charge for a decision as to its future management and trial.”

On behalf of the Council it is submitted that both the application to transfer the case from the Bristol District Registry and also the manner by which the Defendants seek to have the case assigned to a High Court judge have proceeded incorrectly.

The Defendants do not seek to argue otherwise and in my judgment, the Council is entirely correct in what they submit as to the two applications. First, an application to transfer from the Bristol District Registry to London should be made in that district registry. It should not be made merely by a letter but should be made by an application notice supported by any necessary evidence. In this case some of matters relied on have only appeared in counsel’s submissions and clearly they should have been the subject of evidence in support of the application. Secondly, so far as TCC practice is concerned, the TCC Guide differentiates between cases which are issued in the Regional TCC Centres and those issued in London. Whilst the Judge in Charge of the TCC deals with the assignment of cases issued in London as set out in paragraph 3.7.1 to 3.7.4 of the TCC Guide, the full time or principal TCC judges at the Regional Centres deal with the cases issued or transferred to those centres, as set out in paragraph 3.7.5 of the TCC Guide. In this case, any request for the matter to be case managed and tried by a High Court judge should, in the first place, have been made to the principal TCC judge in Bristol. It would only be after any transfer to the London TCC that the Judge in Charge deals with this.

The Judge in Charge of the TCC does not and cannot generally become involved in the allocation or assignment of cases which are issued at the court centres outside London. There are now a number of major TCC Regional Centres outside London. They exist to support both the local business community and also the solicitors and counsel who practise at those court centres. There are full time or principal TCC judges at those Regional Centres whose role it is to administer and case manage, the TCC cases which are at those centres. They form an important part of the TCC jurisdiction in allowing parties to have their claims determined at a convenient centre, using local solicitors and counsel.

Given the failure to issue of the Defendants to issue the proper application notice and the failure to make an application to the principal TCC judge here in Bristol, the question is whether the court should now entertain this application and deal with the application to transfer and the issue of whether the case should be managed and tried by a High Court judge, here or in London.

Mr. Levy, on behalf of the Council, makes cogent submissions that, in the circumstances, the court should dismiss the applications without considering the merits because the failure of the Defendants to issue the correct application in the correct place has meant, first, that there is no proper evidence before the court and, secondly, that the principal TCC judge who has been case managing the proceedings has been deprived of dealing with these applications. It is submitted that the Defendants should not be allowed to bypass the proper procedure.

Mr Brannigan, on behalf of the Defendants, submits that whilst the correct procedures may not have been followed, the court should hear the applications on the merits taking account of the overriding objective.

I have come to the conclusion that in this particular case I should waive the procedural irregularities under the overriding objective. First, I have ordered that these applications should be heard in the Bristol TCC. As a result, the matter is now being considered in Bristol as it would have been if the application to transfer had been issued here. It is true that I am hearing the case rather than the principal TCC Judge but the necessary allocation of resources does mean that sometimes matters need to be determined by a different judge. Secondly in relation to the assignment of cases, I have to deal with questions of assignment as the Judge in Charge both in respect of cases issued in the London TCC and also when they are referred to me by full time or principal TCC judges outside London. Thirdly, any lack of properly presented evidence on the applications will adversely affect the Defendants rather than the Council. Fourthly, I have heard detailed submissions from experienced counsel and the proper use of court resources and the efficient and cost-effective management of these proceedings weighs heavily in favour of proceeding. For those reasons, I consider that the overriding objective is best furthered by proceeding to hear the application.

Before dealing with the applications, it is worth considering some general principles which apply to the allocation of business in the TCC. The first principle concerns transfer to and from London in the case of TCC cases. Generally, where there is a TCC judge at a Regional Centre which is convenient to the parties or which, on the balance of convenience, is the appropriate place for management and trial of the case to take place, the case should remain at that centre rather than being transferred to London. In those circumstances, cases issued at a Regional Centre will be case managed and tried by the full time or principal TCC judge or another TCC judge sitting at that centre.

The London TCC judges both now and formerly in carrying out Official Referees’ business, have a long tradition of travelling outside London to hear cases where the balance of convenience favours that option. When a TCC case at a Regional Centre merits case management or trial by a High Court Judge it will generally be more appropriate for a High Court judge to case manage or try that case at a Regional Centre rather than for a case to be transferred to London. This is now made possible by the appointment of TCC High Court judges who also sit on circuit. It is not therefore necessary to seek to have a case transferred to London so that it can be case managed or tried by a High Court judge. Equally, there may be occasions when it will be appropriate for one of the specialist senior Circuit TCC judges in London to case manage or try a case at one of the Regional Centres, if a TCC judge is not available for a particular case.

Therefore, the question of transferring a case to London will occur only where that transfer is necessary because the balance of convenience favours the matter being dealt with in London. Of course, there will be instances, such as the present case, where the court directs that a particular hearing will take place at a different location. That, however, does not affect the principle of transfer.

The second matter is the question of the assignment of a case as one to be case managed and tried by a High Court Judge (HCJ) or a specialist senior Circuit judge (SCJ). The Statement by the Lord Chief Justice on 7 June 2005 introduced the change by which High Court judges would start sitting permanently in the TCC. Currently, there are three TCC High Court Judges. In addition to me, as the Judge in Charge of the TCC, Mr Justice Akenhead and Mr Justice Coulson have been appointed as TCC High Court judges, spending a large proportion of their time dealing with TCC cases. They sit both in London in the TCC and on Circuit. When a case comes to the TCC in London it is therefore either assigned to one of the three High Court judges as “HCJ” or, if assigned “SCJ” it is allocated to one of the three experienced specialist senior Circuit judges: His Honour Judge Thornton QC, His Honour Judge Wilcox or His Honour Judge Toulmin CMG QC sitting in the London TCC.

Under the June 2005 Statement it was necessarily accepted that the TCC Regional Centres had to be treated in a different way to the London TCC in terms of assignment of cases. It was recognised that the Judge in Charge cannot and should not need to deal with the assignment of TCC cases which are issued at the Regional Centres. Therefore, as it says in the Statement, it is neither practical nor necessary for the Judge in Charge to consider TCC cases which are commenced in or transferred to court centres outside London. It is left to the full time or principal TCC judge at the Regional Centres, either of their own volition or because it is raised by a party, to consider whether or not a case is more suitable to be managed or tried by a High Court judge rather than by himself or another one of the TCC judges. If so, then as Judge in Charge I determine, in consultation with the TCC judge at the Regional Centre, how the case should be case managed and tried. Generally, this will be by a High Court judge sitting at the Regional Centre.

There has been a perception that a case had to be transferred to London for it to be tried by a High Court TCC judge. That is quite clearly not now the case. The question of whether a case is to be assigned “HCJ” or “SCJ” either in London or at a Regional Centre depends on whether the case merits management and trial by a High Court judge and the same matters, set out in paragraph 3.7.2 of the TCC Guide, have to be considered. If the matter is appropriate to be managed and tried by a High Court judge, either in London or at a Regional Centre, then it should be managed and tried by a High Court judge wherever it is issued. Otherwise it will be managed and tried in London by one of the specialist senior Circuit judges or at a Regional Centre, either by the full time or principal TCC judge, or one of the other TCC judges, assisted as necessary by one of the London senior Circuit judges.

With those observations in mind, I turn to consider the question of whether or not this case should be transferred from the Bristol District Registry to the Royal Courts of Justice in London. The considerations which apply include the matters set out in CPR rule 30.3(2) at paragraphs (a) to (h). The potentially relevant ones here are:

“(a)

the financial value of the claim and the amount in dispute, if different;

(b)

whether it would be more convenient or fair for hearings (including the trial) to be held in some other court;

(c)

the availability of a judge specialising in the type of claim in question;

(d)

whether the facts, legal issues, remedies or procedures involved are simple or complex;

In relation to TCC cases, the considerations at (a), (d) and (e) should not now mean that a case has to be transferred from a district registry to London to have the case dealt with by a High Court judge. Equally, (c) does not apply where there is a TCC judge at a Regional Centre. Further, the facilities at the TCC Regional Centres, even before the new Civil Justice Centres mean that this will not be a reason for transfer.

Rather, where an application is made for transfer from the Regional Centre to London is being considered, the central factor will generally be (b), that is whether it would be more convenient or fair for hearings, including the trial, to be held in London rather than in the Regional Centre.

Certainly, in this case, the question is whether it would be more convenient or fair for hearings to be held in London or in Bristol. On that issue I have come to the conclusion that the balance of convenience and fairness favours Bristol. Bristol is not as convenient, doubtless, for the Claimants as, say, Cardiff might have been. Equally, it is not as convenient as London would have been for the Defendants but it is more convenient than Cardiff.

The main submission by Mr Brannigan is that, because of the financial position of the Defendant companies and their insurance position, they would be able to deal with the costs of a hearing in London but could not deal with one in Bristol. He points out that the legal team and experts are generally based in London or the South East and will incur additional cost in having to deal with the case in Bristol. That submission, as Mr. Levy points out and Mr. Brannigan accepts, is not supported by any evidence. Mr Levy submits that the Defendant companies have so far funded this litigation using London solicitors and counsel and are part of a larger group. I would wish to have much more cogent evidence before me before I could determine that a hearing in Bristol would not be fair to the Defendants.

In those circumstances, I consider that Bristol forms a convenient location for this trial to continue to be dealt with and that, reviewing the matters relevant to transfer in the CPR Part 30 in relation to this TCC case, there are no grounds to support a transfer from Bristol to London. I therefore refuse the application to transfer from the Bristol District Registry to London.

Given my decision on transfer, this case would generally continue to be dealt with by the principal TCC judge in Bristol. The question of whether the case should be managed and tried by a High Court judge, would normally be dealt with under paragraph 3.7.5 of the TCC Guide. As Mr. Levy rightly observes, the principal TCC judge would necessarily be involved in that decision. However, this concerns a matter of the allocation of judicial resources under both the procedure before the London TCC and under paragraph 3.7.5 of the T.C.C. Guide. I consider that, in the circumstances, whilst it would have been desirable for the matter to have been raised before the principal TCC Judge in Bristol, this should not prevent me from dealing with the application now in furtherance of the overriding objective.

It is said on behalf of the Council that there is a degree of “forum shopping” in the Defendants’ decision to seek transfer to a High Court judge in London because of adverse rulings made against them in these proceedings. If I considered that to be correct I would clearly not entertain the application. Rather, I deal with the application on the basis of an assessment of the matters in paragraph 3.7.2 of the TCC Guide. The question is whether taking account of all the relevant circumstances, including the size and complexity of the case, the nature and importance of any points of law and the amount of money at stake, this is a case which merits being managed and tried by a High Court judge, taking account the availability of TCC High Court judges.

In my view, looking objectively at this case, it is evidently not a straightforward professional negligence case. The fact that there is a claim for rectification indicates that it has a greater degree of complexity than normal. Reliance is also placed on a draft due diligence report and the scope and extent of the duties of care derived from it, with an associated estoppel. These matters show, in my judgment, that this is a case which has points of law and complexity which would justify the case being dealt with by a High Court judge. The amount of money at stake is of the order of £54 million and that certainly makes it an important case. In addition, although I have no detailed evidence, I accept that there are insurance difficulties and that these are bound to heighten concerns for the Defendant consulting engineers in this case. It also increases the importance of the case.

In those circumstances, I consider that this is a case which would, in principle, merit being managed and tried by a High Court judge. The case has so far been managed impeccably by the principal TCC judge and I consider that the appropriate way to proceed in this particular case is for the general case management to remain with the principal TCC judge. He will consider, in consultation with me, whether particular matters which arise during the management of that case would need the involvement of a High Court judge. I would expect that to occur only rarely. However, a High Court judge will be available to be involved in important interlocutory matters where in consultation with the principal TCC judge that is thought to be appropriate Otherwise, a High Court judge will be involved, first of all, at the pre-trial review and, secondly, to conduct the trial of this matter.

Therefore, I refuse the application to transfer this case from the Bristol District Registry. So far as the application for the case to be managed and tried by a High Court judge, I give directions that it should be tried by a High Court judge but should generally continue to be managed by the principal TCC judge in Bristol.