The Regional Courts v London – Business & Property Courts

by Tony Muman (Deputy Head of Chambers)
and Muhammad Ul-Haq

Posted 3 February 2025

 

A claimant based in the EU providing international consultancy services.  A defendant with a registered office in London but otherwise part of a multi-billion-dollar global entity based in the Middle-East.  Neither has a trading presence in the UK.  The defendant’s business relates to online streaming and entertainment.  Following a dispute, the claimant instructs lawyers based in Birmingham.  The defendant corresponds through its in-house legal department.  There are no witnesses based in the UK.  The dispute relates to international broadcasting rights following a deal brokered in a third country.  The contract was negotiated and agreed by email.  The jurisdiction clause stipulates the Courts of England & Wales.  The value of the claim is substantial.  The commercial dispute has no connection to the UK.

Where does the claimant issue its claim?     

The claimant elected for the Business and Property Courts in Birmingham.  Admittedly, this was a lawyer-driven decision; the lawyers were based in Birmingham.  But it also reflected not only the legal principles but also the pride Birmingham lawyers have for their home court and the cultural and symbolic importance of  regionalisation.  It reflected the fact that the Birmingham District Registry is not lacking in capacity, technology, resources, or expertise to handle an international multi-million-pound claim.  It reflected the sentiment that high level litigation is not London-centric or reserved to the multinational firms operating in the City.  And, perhaps most of all, it reflected the fact that Birmingham offers the best after-work curry in the country (from a biased perspective!)

Post-issue, the defendant instructed solicitors based in London but with regional and international offices.  The firm’s website lists on the ‘Contact’ page under the header ‘Our Offices’ a location in Birmingham.  The defendant applied for a transfer to the Business and Property Courts of England and Wales at the Rolls Building in London on the basis that:

  • The claim has more significant links to London than to Birmingham in that the defendant’s registered office and its solicitors are based in London, in contrast to the only link to Birmingham being that the claimant’s lawyers are based there;
  • The defendant wishes for the case to proceed in London; and
  • The international aspect of the claim and the fact that witnesses are based abroad makes it more preferable for the case to proceed in London, where there are better international transport links.

The application indicated that the defendant would notify the receiving court of the Transfer Application by letter to the issues desk of the Chancery Division at the Rolls Building; enclosing a copy of the application notice and enclosures.

The application was resisted.

The Law on Transfer Proceedings

The High Court has the power under CPR r.30.2(4) to order proceedings (or any part of them, such as a counterclaim or an application) to be transferred from:

  • The Royal Courts of Justice to a District Registry
  • A District Registry to the Royal Courts of Justice
  • A District Registry to another District Registry

An application for a transfer from the Rolls Building to or from the B&PCs District Registry or vice versa or from one District Registry to another, must be made to the court from which the transfer is sought and must additionally be discussed with and consented to by the receiving court: PD57AA paragraph 3.1.

The power to transfer is discretionary and is exercised by the court having regard to the criteria in CPR 30.3.

In relation to transfers involving the Business and Property Courts, PD 57AA paragraph 3.1(3) provides that in addition to the criteria in CPR 30.3(2), the court must also have regard to:

  • significant links between the claim and the circuit in question, considering the factors listed in paragraph 2.3(3) and (4);
  • whether court resources, deployment constraints, or fairness require that the hearings (including the trial) be held in some other court than the court into which it was issued;
  • the wishes of the parties, which bear special weight in the decision but may not be determinative;
  • the international nature of the case, with the understanding that international cases may be more suitable for trial in centres with international transport links; and
  • the availability of a judge specialising in the type of claim in question to sit in the court to which the claim is being transferred.

In relation to significant links, PD57AA paragraph 2.3(3) states a link to a particular circuit is established where—

  • one or more of the parties has its address or registered office in the circuit in question (with extra weight given to the address of any non-represented parties);
  • at least one of the witnesses expected to give oral evidence at trial or other hearing is located in the circuit;
  • the dispute occurred in a location within the circuit;
  • the dispute concerns land, goods or other assets located in the circuit; or
  • the parties’ legal representatives are based in the circuit.

In Bellinger and another v Mercer Ltd and another [2014] EWHC 372 (Ch), the court was asked to transfer proceedings from the Manchester District Registry to the Royal Courts of Justice, London.  The High Court refused the application, considering it”neither necessary nor appropriate“.  In reaching its decision, the court considered the criteria for a discretionary transfer order in CPR 30.3(2).  HHJ Pelling KC took the following factors into account:

  • The location of the parties’ solicitors and counsel. The judge considered the fact that counsel for the parties and the defendants’ solicitors were based in London to be nothing more than of “incidental importance“, as the claimants’ solicitors were based in Manchester.  It was likely that the claimants would have to undertake more work; this tipped the balance in favour of the case being continued in Manchester.
  • The financial cost of the claim. Although the judge accepted that travel to, and accommodation in, Manchester would involve additional costs, they would be minor compared to the costs of the litigation   (He also noted that it was routine for counsel to travel between the two cities for specialist Chancery proceedings such as these.)
  • The speed at which trial could be arranged, the availability of docketing, and the ability to list applications at short All these factors were in favour of keeping proceedings listed in Manchester.
  • The location of witnesses for the defendants, who were said to be based predominantly near London. The judge considered that the benefit to the claimants of an earlier trial date outweighed the cost of travel and accommodation in Manchester (for a short trial), which, as he had already pointed out, would be minimal in comparison to the cost of the proceedings.

In Lumbermans Mutual Casualty Company v Bovis Lend Lease Ltd [2004] EWHC 1614, the court held that in addition to CPR 30.3(2), the transferee court should also consider the overriding objective when deciding to transfer a case or not.  This mirrors the requirement contained in CPR 1.2 which requires the court to give effect to the overriding objective when exercising any power under the rules.  The overriding objective, in particular, requires inter alia the court to put the parties on an equal footing, save expense and consider the financial position of each party.

The suitability, and indeed desirability, of keeping cases in regional B&PCs, such as Birmingham, is reflected in The Business and Property Courts of England & Wales ‘An Explanatory Statement’ dated 18th May 2017.  Co-authored by Sir Geoffrey Vos, the Chancellor of the High Court and Sir Brian Leveson, President of the Queen’s Bench Division, it states:

How will the regions benefit from the introduction of the B&PCs?

Lord Justice Briggs’ reports have consistently recommended, and the Judicial Executive Board has accepted, that no case should be too big to be tried outside London. We should be able to provide an integrated Business & Property Courts structure across England & Wales.  The aim is to achieve a critical mass of specialist judges sitting in each of the Business & Property regional centres so that all classes of case can be managed and tried in those regions.  At the moment, many such cases migrate to the Rolls Building for a multitude of inadequate reasons. Once there, they are often tried by a section 9 circuit judge from the region whence the case originated.  It should become easier to transfer regional cases back to the regions for management and trial. Waiting times are considerably less in the regional centres than they are at the Rolls Building.  In all the Business & Property Courts and Lists, a High Court judge can be provided to try an appropriate case outside London.

In Arif and others v Berkeley Burke Sipp Administration Ltd [2017] EWHC 3108 (Comm), the B&PC in Bristol consideredthe defendant’s application to transfer the claim from the Bristol District Registry to the Royal Courts of Justice in London.  HHJJonathan Russen KC, the specialist Circuit Commercial/TCC Judge at the B&PCs in Bristol, considered the guidance on transfer ofproceedings set out in the B&PCs Practice Direction and the B&PCs Advisory Note alongside the criteria set out in CPR 30.3His conclusion that the proceedings should remain in Bristol is consistent with the ethos, articulated by Lord Briggs and Sir Geoffrey Vos, that no case should be too big for the regions.  The judge commented that a core tenet of the B&PCs structure was to give due recognition to regional specialism and expertise.  Arif also highlights the need for detailed practical evidence to prove one venue is more convenient than another.

In circumstances where the factors each party relies on are fairly balanced, or broadly cancel one another out, the court’s established approach has been to maintain the status quo.   It is incumbent on the defendant to justify the transfer by reference to “significant factors” (plural).

In Tai Ping Carpets UK Limited v Arora Heathrow T5 Limited [2009] EWHC 2305 (TCC), the court refused to transfer proceedings in favour of the claim remaining in Birmingham.  Coulson J (as he then was):

[14] Although very many of the factors cancel each other out, I have concluded that the balance of convenience favours keeping this case in Birmingham. There are two particular matters to which I have had regard in arriving at that conclusion.

[15] First, it seems to me that, in the absence of any significant factors favouring the transfer to London, I should keep this case in Birmingham because that is what the claimant has requested. After all, it is the claimant who has gone to the trouble and expense of starting these proceedings, and it is the claimant who runs the costs risk, to the extent that its claim may ultimately be unsuccessful. These are the claimant’s proceedings and the responsibility for them rests with the claimant. If, therefore, the various other competing factors broadly cancel each other out, then it seems to me that I ought to give particular weight to the claimant’s choice of location for case management and trial.

[16] Secondly, again given the way in which the majority of factors cancel each other out in the present case, it seems to me that the court can and should have regard to the fact that inevitably, so it seems to me, proceedings which are case managed and tried in London will be more expensive than they would be if they were case managed and tried in one of the regional centres.

It is not for a claimant to justify its choice of venue in which the claim has been issued.  Equally, it is not for the claimant to persuade the court to keep the case in the regional B&PC: rather, it is for the defendant to persuade the court to transfer to London.  As HHJ Russen QC observed in Arif:

“[55] I would need to identify particular reasons why the coverage provided by the specialist business of the Bristol District Registry might be considered to be deficient for the purposes of case managing and trying these claims.”

Analysis

PD57AA section 2 (consisting of paras 2.1-2.4) falls under the hearing “Starting Proceedings”.  PD57AA section 3 (consisting of paras 3.1-3.3) falls under the heading “Transfers”.

Each section contains a self-contained sets of rules which deals with two different scenarios – one issue and the other transfer.  There is no cross-over between the two except where the rule expressly provides (for example paragraph 3.1(3)(a) on transfer cross-refers to the factors set out at paragraph 2.3(3) and (4) on issue, with the intent that when considering whether to transfer, the court can also take into account the criteria set out in the issue rule for or against transfer).  It has nothing to do with issue.

Under paragraph 2.2(1) the claimant “chooses which court… to issue its claim”.

Paragraph 2.3(1) states “the claimant must determine the appropriate location in which to issue the claim.”  To “determine” means to consider/to decide.

The choice of location is, self-evidently, for the claimant; and not to be undertaken in consultation with the defendant.  If paragraph 2.3(1) intended claimants to consult defendants before taking the decision where to issue, the draftsperson would have said so.  To suggest otherwise requires the court to read into the rule requirements which are not there.  The case law cited above talk of the claimant’s choice of venue.  If the defendant takes objection, the remedy is for it to apply for a transfer and to persuade the court to so order by reference to the transfer principles in para 3.1 of PD57AA, the Chancery Guide, and the case law.

The claimant’s choice of court is put beyond doubt by paragraph 2.5 which states “[w]hile any appropriate claim may be issued in any of the B&PCs District Registries…”.  The reference to ‘appropriate claim’ in para 2.5 is obviously not to be conflated with ‘appropriate location’ in paragraph 2.3.  What is an appropriate claim is understood by reference to the subject matter of the dispute (see paragraph 2.2).  Once a dispute which falls within the jurisdiction of the B&PCs arises (i.e., appropriate claim), it is for the claimant to determine where to issue (i.e., the appropriate location) by reference to paragraph 2.3.  The test is subjective and a matter of choice for the claimant, informed by the factors set out in the rule.  It is not open for the court to revisit the claimant’s determination of appropriate location because:

  • the test is not an objective one in which the court could properly impute its own view/decision – the court does not sit in judicial review of a private citizen bringing a private law action;
  • the CPR provides no mechanism in paragraph 2 to do so; and
  • Paragraph 2.3 of PD57AA does not impose sanctions on a claimant for issuing in a particular court. It simply requires a claimant pre-issue to determine for itself the appropriate location which it considers for issue. It is not a brightline rule.

This is consistent with paragraph 2.5 (“While any appropriate claim may be issued in any of the B&PCs District Registries…”).  This is because the decision is a subjective one undertaken by the claimant.

Paragraph 2.3(2) mandates those claims with “significant links” to a particular circuit outside of London or the South-Eastern Circuit to be issued in that location’s B&PC District Registry.  The rule does not, in the same way, mandate that a claim with significant links to London must be issued in London.  This reflects the policy imperative behind regionalisation, which is an important factor for the court to balance.  One such example is where, by reference to paragraph 2.3(3)(e) the parties’ legal representatives are based in the circuit (“the circuit” means the particular circuit outside London or anywhere else in the South Eastern Circuit).  Properly understood, the rule prescribes that where the parties are represented by lawyers in a circuit outside of the South Eastern Circuit, then the claim must be issued in the B&PC District Registry in that circuit, and not in London.

It becomes clear that the mischief behind paragraph 2.3(2) was to direct claims to be issued in circuits outside of London.  But for paragraph 2.3(2), claims would continue to have been issued in London.  Paragraph 2.3(2) was introduced alongside the introduction of the B&PCs to kick start the principle of regionalisation (in other words, to stop claims being issued in London, as was conventional at that time).  There were similar rules introduced in public law judicial review claims with this very intention.

Unwittingly, the defendant’s submission in this case scored an own-goal.  By virtue of paragraph 3.1(3)(a), the court in deciding the Transfer Application was required to have regard to the fact that the parties’ legal representatives were both based in the Midlands Circuit.  To test the point, if the claimant was to issue its claim now based on a review of the defendant’s solicitor’s website, it could not be criticised for issuing in Birmingham (because both sets of lawyers are based in that circuit).  If it did issue in London, the claimant would be acting contrary to paragraph 2.3(3)(e) and the claim would probably be transferred from London to Birmingham by reference to paragraph 3.1(3)(a).

As stated in the cases and guidance referred to above, the following important principles emerge:

  • There is only one High Court in England and
  • The B&PCs in the regions have specialist judges and can deal with complex and high value cases.
  • The speed at which trial could be arranged, the availability of docketing, and the ability to list applications at short notice are all factors in favour of keeping proceedings listed in the regional courts.
  • Accessibility of witnesses travel into the regions is an important practical consideration.
  • The benefit to the parties of an earlier trial date outweighs the cost of travel and accommodation in the regions (for a short trial), which would be minimal in comparison to the cost of the proceedings in London.
  • The ethos, articulated by senior judges that no case should be too big for the regions and that a core tenet of the B&PCs structure was to give due recognition to regional specialism and expertise.

Of the potential links to Birmingham and London in this case, the only actual difference separating the parties was that the defendant’s registered office is in London.  If the defendant were an individual, CPR 26.2(1)(d), requires automatic transfer to his ‘home court’ being a place “in which the defendant resides or carries on business” (CPR 2.3(1)(b)).  The provisions regarding automatic transfer to a defendant’s home court apply only where the defendant is an individual.  The CPR draws a deliberate distinction between an individual and a company, recognising that for companies the same imperative/need/policy reasons to transfer to the individual’s home court does not apply.  Further, the automatic transfer provisions are disapplied when the claim is commenced in a specialist list (CPR 26.2(2)).

Whilst the location of the registered office meets the definition of a link under PD57AA paragraph 2.3(3)(a), it is not per se a significant link (PD 57AA paragraph 3.1(3)).

In absence of a strong justification for transfer to London, the practice is that the court will place significant weight on the claimant’s choice of venue and the obvious point that cases outside of London will be less expensive to litigate.

It is always worth emphasising that the claimant’s lawyers will be doing the heavy lifting in litigating the claim, including preparation of bundles and filing documents with the court.  The size and nature of the firm is an important factor to balance.  Regional accessibility to the High Court extends equally to High street law firms, in the same way as it does to claimants. Regionalisation across all divisions of the High Court recognises that London, and London firms, no longer have a monopoly on cases which traditionally could only be issued in the Royal Courts of Justice.  There is a public interest of constitutional importance in ensuring accessibility to justice across the regions, which the case law on transfers has long recognised.  Regional small firms may not have offices in London and would not be able to absorb the costs of setting up a temporary office in London.  Fee-earners based in the regions will be billing cases at commensurate non-London hourly rates and not able to charge London weighting if the matter was transferred to London.  Firms will be effectively billing a London case at non-London rates.  To transfer the case to London will effectively mean having to transfer the file to a London firm.

Even if the competing factors are not entirely evenly balanced and lean towards transfer to London, it is insufficient to disturb the status quo by removing a case from its current venue and depriving a claimant from its choice of venue: see Edwards-Stuart J’s observations in CFH Total Document Management Ltd v OCE UK Ltd & Anor [2010] EWHC 541 (TCC) at [29] – [31].

A Knock-out Blow

The burden is on the defendant to demonstrate (i) that it has put the receiving court on notice of the transfer application, and that the receiving court has consented to the transfer, and (ii) assuming consent has been granted if the application is contested, that the above factors clearly weigh in favour of a transfer.  The rules are clear and the court has no discretion to depart from them.

In this case, the application suggested that the defendant would notify the receiving court. The claimant was not sent a copy of any notification, and nothing was exhibited to the application.  Fundamentally, the claimant had not seen anything to suggest that the Rolls Building had been informed that the defendant’s application to transfer was contested and that the matter had been listed for hearing.  Critically, the claimant had not seen anything to suggest that the Rolls Building has consented to transfer from Birmingham to London.

At the hearing, the claimant argued that if notice had not been given, or if the Rolls Building had not been told that the Transfer Application is contested and listed for hearing, and or if consent had not been granted by the Rolls Building, the application fails procedurally and an order for transfer cannot be made (‘a knockout blow’).  Not only is this compulsory under PD57AA, but section 3.24 of the Chancery Guide 2022 (which is mirrored at paragraph 28 of the Chancellor’s Advisory Note on the Business & Property Courts dated 13 October 2017) requires the consent to accompany the application to transfer:  “…the application should be accompanied by confirmation that the applicant has obtained the consent of the receiving court…”

Paragraph 3.1(2) is unequivocal.  Before an application for an order for transfer between registries of the B&PC can be made, two things must take place.  First, alongside the application to the B&PC from which transfer is sought, the applicant must inform the intended receiving B&PC of the application (“Notification”).  Second, the application must be consented to by the receiving B&PC (“Consent”).  Notification and Consent are pre-requisites and are two distinct elements.  This is also made clear in the Chancery Guide, which stipulates that the application should be accompanied by confirmation that the applicant has obtained the consent of the receiving court.  The reason why consent is so important is that there are critical considerations relating to the intended receiving court’s capacity and resources.

The B&PC from which transfer is sought can only then go on to consider the factors at paragraph 3.1(3) once these two pre-cursor events have taken place.  This is made clear from the words “When considering whether to make an order… the court must also have regard to-…”  Also denotes in addition to the requirements in paragraph 3.1(2).

*The claim was settled by consent after the hearing but before the court handed down judgment.

Tony Muman leading Muhammad Ul-Haq acted for the claimant.

For any booking enquiries, please contact the civil clerk at civil@halcyonchambers.com

The views stated in this article belong to the writers in a personal capacity.  No warranty is given, express or implied, in respect of the contents of this article.  Nothing in this article is tendered as or is intended to taken as legal advice and the contents should not be construed or relied upon as legal advice.  Specialist legal advice should always be taken in every case noting that the application of the law may vary according to the individual facts of the case and the nature of the dispute. 

Keywords: Transfer, District Registry, Business and Property Courts, Birmingham High Court, CPR r.30, PD57AA, Consent, Rolls Building, B&PC