Commercial court needs more than rebranding – Partner Simon Bushell writes in The Times Law Brief

By Simon Bushell
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Simon Bushell

Partner Simon Bushell examines the recent announcement that a number of specialist civil courts in the High Court will become the Business and Property Courts of England and Wales in The Times Law Brief.

Simon’s article has been published in The Times Law Brief, 20 March 2017, and can be read here.

Commercial court needs more than rebranding

Complex commercial disputes are big business and the market among courts and tribunals around the world is fierce. Litigators in London have been concerned for some time that the English courts risk losing ground to their various global competitors.

The lord chief justice’s latest response, revealed last week, is to rebrand the specialist civil courts within the High Court, creating the umbrella of the Business and Property Courts of England and Wales. Lord Thomas said that “the judiciary is committed to maintaining Britain’s reputation as the best place in the world for court-based dispute resolution”.

It remains to be seen how successful this rebranding is.

October 2015 saw the birth of the financial list, the much-heralded specialist banking and financial markets dispute resolution forum at the Rolls Building in London. It has showcased judicial expertise in complex financial disputes, creating a specialist, focused environment in which sophisticated users can have confidence.

Does introducing a further concept embracing “business” and “property” potentially water down or blur the message sent when introducing the financial list?

At present, High Court judges are appointed into the specific divisions, and then in some cases to the various specialist courts. Historic barriers prevent judges from moving from one court to another where, in all the circumstances, that might make sense.

The new umbrella will seemingly flatten the structure. All of the specialist civil courts will be able to draw on the judicial resources available in the other specialist courts where that might be appropriate. This has potential to work especially well in relation to the overlap between chancery and the commercial court.

The second key aspect to the announced change relates to disputes outside the capital. The message is that the Business and Property Courts will cater to parties in the regions so they do not have to issue claims in the High Court in London to benefit from the specialist judges.

From June, those judges will travel as appropriate, or those from the quota of “business and property” judges in any particular district will sit in one of the specialist courts as appropriate.

This is likely to have two consequences. First, the district registries of the High Court will develop their own versions of the specialist courts presently seen as focused in London.

Second, specialist cases that are based in one of the other commercial centres in the UK do not need to travel to London unless it makes sense to do so. This will lead to a better distribution of resources around the UK’s business centres. There is a clear political driver here: decentralising the UK’s business focus and embracing the regions.

However, in furthering that objective we must be careful not to disrupt London’s pivotal position in serving the financial and other markets and the international business community, which are large-scale users of the English commercial law.
To that end, the Rolls Building is intended to take centre stage in projecting the UK’s Business and Property Courts to the rest of the world.

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