The Business and Property Courts of England and Wales – launch on 4 July 2017

Sir Geoffrey Vos, the Chancellor of the High Court and a former Chairman of the Bar Council, came to the Bar Council meeting on 20 May 2017 to talk to us about the newly-styled Business and Property Courts. This followed the announcement on 13 March 2017 that, from June, the specialist civil courts including those in the Rolls Building in London (the Commercial Court, the Technology and Construction Court, and the Chancery Division of the High Court) were to be known as the ‘Business and Property Courts of England and Wales’. The 13 March 2017 press release said that this was to be the new name for the ‘international dispute resolution jurisdictions’ of England and Wales, and to ‘act as a single umbrella for business specialist courts across England and Wales’. The rebranding therefore has international and domestic implications.

Originally planned for June but delayed due to the General Election, the launch date for the new Business and Property Courts is now 4 July 2017.

One of the aims of the new name is to modernise the image of the Chancery Division. Sir Geoffrey said that the name ‘Chancery Division’ evoked Dickens and Bleak House.[1] The opening chapter of Bleak House is ‘In Chancery’, and Dickens mercilessly satirises the court:

This is the Court of Chancery, which has its decaying houses and its blighted lands in every shire, which has its worn-out lunatic in every madhouse and its dead in every churchyard, which has its ruined suitor with his slipshod heels and threadbare dress borrowing and begging through the round of every man’s acquaintance, which gives to monied might the means abundantly of wearying out the right, which so exhausts finances, patience, courage, hope, so overthrows the brain and breaks the heart, that there is not an honourable man among its practitioners who would not give—who does not often give—the warning, “Suffer any wrong that can be done you rather than come here!”

It is little wonder, then, that the new name is intended not only to be more readily understood both at home and abroad, but also to signal that the bad old days of Jarndyce and Jarndyce[2] really are gone.

By contrast, the Commercial Court has always prided itself on being a modern court responsive to the needs of business:

The Commercial Court was set up in 1895 following demands from the City of London and the business community for a tribunal or court manned by judges with knowledge and experience of commercial disputes which could determine such disputes expeditiously and economically, thereby avoiding tediously long and expensive trials with verdicts given by judges or juries unfamiliar with business practices.[3]

Of course, even the Commercial Court is not immune to increased competition from overseas – as its judges and those of us who practise in it are keenly aware. The Commercial Court in London has an international reputation, and it is hard to see what the Commercial Court has to gain – and easy to see what it has to lose – from being bracketed together with the Chancery Division under a new and unfamiliar name. The City UK, which has worked hard to promote London as a major centre for the resolution of international commercial disputes, has however welcomed the rebranding as a ‘forward-looking decision, indicative of the judiciary’s determination to ensure that Britain’s legal system remains world-leading and at the forefront of dispute resolution globally’ and as giving ‘greater clarity to users about the focus and coverage of legal services available at the Courts’.

On the domestic front, the press release referred to ‘the Commercial Court, (including the Admiralty Court and Mercantile Court)’. This formulation – suggesting that there is a single Mercantile Court which is somehow part of the Commercial Court – is also new. Until now, the Mercantile Courts have formally been separate from the Commercial Court, with their own Mercantile Court Guide (not updated since 2012 and as a result now unusable in some respects), although in London there has been a considerable overlap. The London Mercantile Court is administered by the Commercial Court listing office, and there is considerable fluidity between the judges of the two courts, with Commercial Court judges frequently hearing applications in the London Mercantile Court, and the Mercantile Court judge in London, HHJ David Waksman QC, frequently sitting in the Commercial Court.

It is intended, too, that following the launch on 4 July 2017, the Rolls Building courts in London will co-operate more closely with the Mercantile Courts in the regions. Sir Geoffrey said that in principle no case would be too large to be heard outside London, and that in time, the ‘judicial fire-power’ in specialist centres would increase. Although the press release said that the Mercantile Courts in Birmingham, Manchester, Leeds, Bristol and in Cardiff would be renamed Business and Property Courts, with expansions to Newcastle and Liverpool likely in the future, Sir Geoffrey said that the Mercantile Courts would become Commercial Circuit Courts, and their judges would be Commercial Circuit Judges. In addition, the financial limits in the county court have not been increased for some years, and Sir Geoffrey expressed hope that this would happen, in order to allow them to take on more business.

Sir Geoffrey emphasised that the specialist procedures in the Commercial Court, Technology and Construction Court and Chancery Division will remain: he said that procedures in these courts are an internal matter, and the changes are outward-facing. He added that the question which he is asked most often by barristers is what we should put in the heading of statements of case once the new courts have been formally launched. This perhaps sheds light on the personality traits of some barristers (well known to their families but perhaps less clearly perceived by the barristers themselves), and suggests that they may be less willing than Sir Geoffrey to leave behind the era of Jarndyce and Jarndyce. They will no doubt be relieved to hear that the launch of the Business and Property Courts on 4 July 2017 will bring with it a new Practice Note in which the answer to this[4] and similar procedural puzzles can be found.

  1. He said, too, that ‘Mercantile Court’ brought to mind an Edwardian gentleman. The name belies the recent origin of these courts: they are in fact a modern creation, and what is now the London Mercantile Court was originally named the Central London County Court Business List.
  2. The case at the heart of Bleak House: ‘Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises.’ (Chapter 1, ‘In Chancery’).
  3. See https://www.judiciary.gov.uk/you-and-the-judiciary/going-to-court/high-court/queens-bench-division/courts-of-the-queens-bench-division/commercial-court/about-us/.
  4. Sir Geoffrey did in fact provide the answer at the Bar Council meeting. If I noted it down correctly, the format will (for example) be: ‘IN THE HIGH COURT OF JUSTICE’, below that ‘BUSINESS AND PROPERTY COURTS’, and then the name of the court – eg ‘COMMERCIAL COURT’.