I can’t see you, Clem Fandango

Video justice

In mid-March 2020, I was interviewed by Richard Crump of Law360 for an article about the potential impact of Covid-19 on court hearings. The courts were poised to move a significant proportion of hearings online, and I said: ‘It is very interesting, but also worrying, that we are suddenly going into a live experiment where there are concerns about the capacity of the courts and about fairness and open justice.

Since then, there has been an explosion in video hearings, and what has at times seemed a blizzard of practice notes and guidance – from the senior judiciary, from professional bodies[1]Including the Commercial Bar Association (COMBAR)’s excellent Guidance Note on Remote Hearings., and from others.[2]Such as the Inns of Court College of Advocacy’s Principles for Remote Advocacy.

Despite this abundance of advice, new issues continue to emerge.

In Navigator Equities Ltd v Deripaska [2020] EWHC 1798 (Comm), Andrew Baker J was hearing a contempt application remotely. The hearing took place over four days in June 2020, with live witness evidence. The judge said:[3]At paragraph 7.

I was slightly surprised to find when Mr Mill QC moved to call Ms Berard for her oral evidence that this was to be from the conference room at Blackstone Chambers from which Mr Mill was addressing me, his juniors also in attendance (or it may be they were elsewhere in Chambers). I had no reason to think that those in the room were not adopting proper social distancing precautions under current circumstances. My surprise lay not in that direction, but in the fact that the court had not been notified or asked to approve that arrangement, no attempt had been made to ensure there was a Bible available so that Ms Berard could be sworn as she would have preferred (but thankfully she was content to affirm instead), the words for her oath or affirmation were not to hand (although I did notice when drafting this judgment that they were tucked away at the end of the authorities volume of the electronic hearing bundle), the conference room setup meant that I could not have both Ms Berard and Mr Mill QC on screen, and no representative of Mr Deripaska was present.

After saying that he did not regard this as entirely satisfactory, the judge added:[4]At paragraph 9.

If a witness is to give evidence remotely, where he or she will be and who (if anyone) will be with them, and why, should be discussed between the parties in advance. That is always so, in my view, but especially it is so if the arrangement may be such that there could be interaction with the witness during their evidence that will not be visible to the court. Any arrangement other than that the witness will be on their own during their evidence should be approved by the court, in advance if possible, and parties should not assume that an arrangement will be approved just because (if it is) it is agreed between them. Sensible arrangements discussed and agreed in advance are likely to meet with approval if the court does not identify any difficulty of possible substance that the parties may have overlooked. But it must be for the court, not the parties, to control how it receives the evidence of witnesses called before it. I acknowledge that the parties were not asked by the court in advance to specify the witness arrangements here. They should have been, and that they were not is my responsibility, but equally parties should not wait to be asked.

Quasi-prosecutorial duties: contempt applications are not adversarial commercial litigation

The judgment also contains remarks of general importance about the quasi-prosecutorial duties of parties bringing contempt applications.[5]See paragraphs 141-145. This requires a different approach from the ‘modern style’ of dispute resolution which the judge said had developed ‘[i]n the working generation of 30 years or so’ during which he had been engaged in commercial dispute resolution in London and which he deprecated as overly hostile and aggressive. The judge said:[6]At paragraph 161.

In the working generation of 30 years or so during which I have been engaged in commercial dispute resolution in this jurisdiction, principally in this court and in London arbitrations, there has been a significant general increase in hostility and aggressiveness in the conduct of disputes. The taking of any and every point, good or bad, and other failures to display proper independence from the litigating client, is treated too often as if it were a normal or appropriate adjunct of well funded, hard fought, business disputes, particularly if there are issues of dishonesty involved. Where ultimately the court is asked only to decide the outcome of the business dispute, usually to be expressed in terms of a party or parties being told to pay money to another party or other parties, there may be nothing too unfair about that modern style, regrettable though I regard it nonetheless. But when the court is being asked by a private litigant to consider a charge of contempt of court against the other side, especially against an individual whose liberty the applicant therefore seeks to put at risk, a better standard of conduct is not merely desirable, it is essential to the fairness and the appearance of fairness of the process. Though I do not suppose that this is how the claimants’ legal team saw what they were doing, the appearance in this case was of claimants not seeking to put Mr Deripaska fairly on trial for contempt, but of claimants seeking to load the dice against him.

Alison Padfield QC


1 Including the Commercial Bar Association (COMBAR)’s excellent Guidance Note on Remote Hearings.
2 Such as the Inns of Court College of Advocacy’s Principles for Remote Advocacy.
3 At paragraph 7.
4 At paragraph 9.
5 See paragraphs 141-145.
6 At paragraph 161.

Commercial Court update – impact of COVID-19 on volume of business, remote & hybrid hearings, & more

The latest Commercial Court User Group meeting was held remotely via Microsoft Teams on 15 June 2020. The minutes of the User Group meeting have just been published. These show how the Commercial Court has adapted during the COVID-19 pandemic.

Here are the main points:

Impact of COVID-19 on volume of Commercial Court business

  • The transition from physical (in-person) to remote (video) hearings has been smooth, with almost all of the Court’s work being conducted notwithstanding COVID-19. There is as a result almost no backlog of work
  • There appears to have been no reduction in court business: there has been a slight upturn in actions commenced (269 in January to March 2019 and 288 this year); the statistics for hearings overall (this appears to exclude trials) are comparable to last year and the year before
  • There have been fewer trials in this period:
    • This appears to be due to settlement rather than adjournment
    • The normal settlement rate is 60 to 65%; in the year to mid-June 2020 it is closer to 75%
    • There have been three times the number of Tomlin orders between January and the end of May 2020 than over the comparable period last year
  • The increase in the rate of settlements began in January 2020 and does not therefore appear to have been triggered by ‘lockdown’ in the United Kingdom; it may be linked to COVID-19-related uncertainty globally, reflecting the international nature of the Court’s business

Remote hearings – present and future

  • Parties may request a socially-distanced physical hearing but there is no guarantee that they will get one. Some judges are unable to return to court due to COVID-19. Conversely, parties will not be expected to attend court if they do not want to
  • Hybrid (part physical, part remote) hearings have taken place with the support of external providers, and a protocol for hybrid hearings is being developed – covering issues such as staggered access times, access routes, witness bundles, managing oaths and affirmations, and the need for test runs
  • It would not generally be fair for one party to be in person and the other to appear remotely
  • The court is hearing witness actions remotely. The judges are alive to potential difficulties with longer trials, particularly where there is critical witness evidence or where there is complex expert evidence (eg where large complex documents have to be explained by experts)
  • Longer trials and hearings with key witness evidence are likely to be the first to return to physical hearings
  • Interim hearings are more likely to be carried out remotely for some time
  • Consideration is being given to whether to keep remote or even hybrid hearings as a default position or at least an often-used option for some types of hearing

Practical points arising from the conduct of remote hearings to date

  • There have been concerns that remote hearings are too informal
  • There seems to have been a loss of some of the non-verbal communication and information that is picked up in a court room
  • The style of advocacy is different as the judge and advocate seem to be in a ‘bubble’
  • Court etiquette should be observed:
    • It is permissible to use mobiles phones on silent in both physical and remote hearings
    • Most counsel are taking instructions via WhatsApp which on occasion can be distracting for those taking part in the hearing
    • Parties who do not have ‘speaking parts’ seem to be interacting more freely amongst themselves, which can be distracting for others
    • Advocates should not be conducting conversations with their teams while on mute
  • There have been one or two incidents where despite warnings participants have photographed proceedings
  • It appears that directions for bundles are being discussed and agreed between parties, causing costs to be raised. This should not be necessary in light of the available guidance. Court users should refer to:

Platforms for remote hearings – Skype for Business/CVP but no ban on Zoom

  • The only platform currently approved by the Ministry of Justice for use on judicial computers is Skype for Business
  • Cloud Video Platform (CVP) is being rolled out. Court users should presume that the default proceeding is that hearings will be conducted using Skype for Business until CVP is available
  • Parties can agree another platform if suitable arrangements can be made (eg for the judge to have access to a separate device running that platform)
  • If parties wish to use another platform, in depth preparations are required, and they should make the Listings office aware as soon as possible: there are always two judges on paper application duty who are able to deal with platform issues

Other aspects of Commercial Court business

Alison Padfield QC

The Commercial Court Report 2018-2019

As I wrote in a previous blog, the Commercial Court report for 2017-2018 was the first for some years. The 2018-2019 report has just been published and is described on the judiciary website as an ‘annual’ report, so it seems we can expect the trend of yearly reports to continue.

The report for 2018-2019 covers the period from October 2018 through to the end of September 2019.[1]The court year begins on 1 October or the first working day thereafter.

Judges[2]Pages 6 and 22 to 23.

There are currently 12 Queen’s Bench Division judges nominated to sit in the Commercial Court.

At the start of October 2019 the judges of the Commercial Court were Teare J (Judge in Charge of the Commercial Court), and Andrew Baker, Bryan, Butcher, Carr, Cockerill, Jacobs, Robin Knowles, Moulder, Phillips, Picken, Popplewell and Waksman JJ.

Since the last report, Males and Phillips LJJ have been promoted to the Court of Appeal and Popplewell and Carr JJ will soon follow, and Walker J has retired.[3]As an aside: the retirements of Lords Clarke, Mance and Sumption left the Supreme Court without any Commercial Court expertise (Lord Sumption sat as a deputy), but Lord Hamblen, a former Commercial Court judge, has since been promoted from the Court of Appeal, and Lord Burrows, who sat as a deputy, has also been appointed.

The Court aims to have about eight judges sitting at any one time but this has not always been possible in recent years because all Divisions of the High Court are currently operating below strength.[4]This is due to a recruitment crisis: https://www.lawgazette.co.uk/practice/hiring-crisis-high-court-judges-in-line-for-47k/5070502.article; https://www.theguardian.com/uk-news/2019/jun/05/uk-high-court-judges-to-be-given-25-pay-rise-to-tackle-hiring-crisis.

The report says that the Commercial Court will gain some new recruits during the course of the year 2019 to 2020. Two new judges have in fact already been nominated to sit in the Commercial Court: Henshaw and Foxton JJ.

Deputy judges are used for applications and trials to ensure that targets for lead times can be maintained. Deputies will only be used either when the parties agree that the matter may be dealt with by a deputy, or when the Judge in Charge of the Commercial Court considers it suitable for the matter to be dealt with by a deputy.

Arbitration[5]Page 7.

There were four hearings of jurisdictional challenges under s 67 of the Arbitration Act 1996. A significant drop in s 69 applications[6]Appeal on a point of law under s 69 of the Arbitration Act 1996. from 87 to 39 was overshadowed by a dramatic fall in s 68 applications[7]Challenges on grounds of serious irregularity under s 68 of the Arbitration Act 1996. from 71 to 19. The Court hopes that this statistic reflects the fact that parties are appreciating the point made repeatedly by the Court in its judgments that the hurdle for s 68 applications is very high.

Disclosure pilot[8]Pages 16 to 17.

The two-year disclosure pilot was launched on 1 January 2019. It is anticipated that it will continue formally thereafter if it is deemed a success. The Court anticipates that 2020 will be key for getting feedback and encourages users to keep submitting this.

In the first six months of the pilot across the Business and Property Courts, in cases where a single model order was made, 53% were for Model C. Where multiple orders were made, 42% were for Model C and the rest either Model B or Model D. In the Commercial Court, 80% of cases opted for Model C.

The report says that in larger cases the disclosure pilot has led to a greater focus on narrowing the scope of disclosure, but that there is a concern that in lower value claims the process is increasing costs. This issue is being actively considered. Overall, there appears to be a need to be vigilant about not over-complicating the process, respecting the express duty of co-operation, and making sure that judges and lawyers alike keep hearing lengths under control.

The report says that there have been concerns about ‘game-playing’ with parties taking tactical positions on the completion of the Disclosure Review Document, and that encouragement to adopt a co-operative approach remains important. [9]Practitioners should take the hint, as Vos LJ, the Chancellor of the High Court, made clear at para 54 of his recent judgment on the disclosure pilot in McParland & Partners Ltd v Whitehead [2020] EWHC 298 (Ch): ‘It is clear that some parties to litigation in all areas of the Business and Property Courts have sought to use the Disclosure Pilot as a stick with which to beat their opponents. Such conduct is entirely unacceptable, and parties can expect to be met with immediately payable adverse costs orders if that is what has happened. No advantage can be gained by being difficult about the agreement of Issues for Disclosure or of a DRD, and I would expect judges at all levels to be astute to call out any parties that fail properly to cooperate as the Disclosure Pilot requires. Very few parties have taken the opportunity for disclosure guidance hearings, and parties are encouraged to think about this option.

Witness statements[10]Pages 18 to 19.

The remit of the Working Group established by the Commercial Court Users’ Committee to consider witness statements, chaired by Popplewell LJ, evolved to cover all of the jurisdictions in the Rolls Building. The final report completed in July 2019 was considered by the Business and Property Courts Board at the end of November 2019. The Board welcomed the report and endorsed in principle its main recommendations, as follows:

  • An authoritative statement of best practice should be formulated for the preparation of witness statements, with a harmonisation of the Guidesfor the Commercial Court, Chancery Division and Technology and Construction Court.
  • There should be a more developed factual witness statement of truth confirming that the objective of a witness statement and proper drafting practices have been explained to and understood by the witness, and a solicitor’s certificate of compliance to be signed if there are solicitors on record for the party serving the statement.[11]Witness statements are also receiving attention in other quarters: From 6 April 2020, a witness statement must state ‘the process by which it has been prepared, for example, face-to-face, over the telephone, and/or through an interpreter’: PD32, para 18(5), as amended by the 113th update to the CPR. See Gordon Exall’s Civil Litigation Brief blog for information on other forthcoming changes to statements of truth.
  • Oral examination in chief on particular issues or topics should be given active consideration at Case Management Conferences.
  • In the Commercial Court, page limit extensions should generally only be considered retrospectively at Pre-Trial Reviews, at the costs risk of the party serving if a required extension is not granted so that a statement has to be re-drafted and re-served.
  • Judges should be more ready, at PTRs or after trials, to apply costs sanctions or express judicial criticism where there has been non-compliance or bad practice.
  • Consideration should be given within each Business and Property Courts jurisdiction to the possibility of introducing a pre-trial statement of facts prepared by the legal team and served at the same time as witness statements, to serve as the main vehicle for setting out parties’ detailed factual narrative case, derived primarily from the contemporaneous documents, removing the temptation to use witness statements as a vehicle for doing that[12]For the current arrangements for introducing documents into evidence at trial, see the Commercial Court Guide, paras J8.6 and J8.7. and enabling them to be properly limited to any particular points on which factual witness testimony at trial may really add something.

The report says that the Working Group will oversee the work that will now commence towards implementing those recommendations. Andrew Baker J is taking over as chair of the Working Group following Popplewell LJ’s elevation to the Court of Appeal and the detailed initial work may be undertaken by one or more smaller groups reporting to the full Working Group.

Alison Padfield QC


1 The court year begins on 1 October or the first working day thereafter.
2 Pages 6 and 22 to 23.
3 As an aside: the retirements of Lords Clarke, Mance and Sumption left the Supreme Court without any Commercial Court expertise (Lord Sumption sat as a deputy), but Lord Hamblen, a former Commercial Court judge, has since been promoted from the Court of Appeal, and Lord Burrows, who sat as a deputy, has also been appointed.
4 This is due to a recruitment crisis: https://www.lawgazette.co.uk/practice/hiring-crisis-high-court-judges-in-line-for-47k/5070502.article; https://www.theguardian.com/uk-news/2019/jun/05/uk-high-court-judges-to-be-given-25-pay-rise-to-tackle-hiring-crisis.
5 Page 7.
6 Appeal on a point of law under s 69 of the Arbitration Act 1996.
7 Challenges on grounds of serious irregularity under s 68 of the Arbitration Act 1996.
8 Pages 16 to 17.
9 Practitioners should take the hint, as Vos LJ, the Chancellor of the High Court, made clear at para 54 of his recent judgment on the disclosure pilot in McParland & Partners Ltd v Whitehead [2020] EWHC 298 (Ch): ‘It is clear that some parties to litigation in all areas of the Business and Property Courts have sought to use the Disclosure Pilot as a stick with which to beat their opponents. Such conduct is entirely unacceptable, and parties can expect to be met with immediately payable adverse costs orders if that is what has happened. No advantage can be gained by being difficult about the agreement of Issues for Disclosure or of a DRD, and I would expect judges at all levels to be astute to call out any parties that fail properly to cooperate as the Disclosure Pilot requires.
10 Pages 18 to 19.
11 Witness statements are also receiving attention in other quarters: From 6 April 2020, a witness statement must state ‘the process by which it has been prepared, for example, face-to-face, over the telephone, and/or through an interpreter’: PD32, para 18(5), as amended by the 113th update to the CPR. See Gordon Exall’s Civil Litigation Brief blog for information on other forthcoming changes to statements of truth.
12 For the current arrangements for introducing documents into evidence at trial, see the Commercial Court Guide, paras J8.6 and J8.7.

The changing face of the Commercial Court


This post was published on 30 June 2019. On 16 July 2019, the appointment of five new judges to the Court of Appeal was announced. This includes three Commercial Court judges: Carr, Phillips and Popplewell JJ.

The Commercial Court recently published its first annual report for some years. Given the pressure on court staff due to the chronic underfunding of the English and Welsh court system – from which the Commercial Court is not immune[1] – it seems likely that the decision to recommence publication of annual reports now is part of the ongoing drive to attract business to the Commercial Court in an increasingly competitive international market.

The Commercial Court Report 2017-2018 reveals changes in the Court’s constitution and its business. Here are a few interesting snippets:

The constitution of the Commercial Court

At the time of publication,[2] the judges of the Commercial Court were Teare J (Judge in Charge of the Commercial Court), Andrew Baker, Bryan, Butcher, Carr, Cockerill, Jacobs, Robin Knowles, Males,[3] Moulder, Phillips, Picken,[4] Popplewell, Waksman and Walker JJ.[5] This means – although the Report does not comment on this – that there are now, for the first time ever, three female Commercial Court judges, and one Commercial Court judge who is a former solicitor.

Recently retired judges who are still authorised to sit in the Court include Sir William Blair, Sir Ross Cranston, Sir Michael Burton and Sir Andrew Smith. The London Circuit Commercial Court Judge (from 1 July 2019, this will be HHJ Pelling QC[6]) and a number of specialist commercial Queen’s Counsel are also authorised to sit as deputy judges in the Court. Deputies are used only when the parties agree, or when the Judge in Charge of the Commercial Court consider that this is appropriate.

Commercial Court judges, as judges of the Queen’s Bench Division, sit on circuit hearing criminal trials for part of the year.[7] They may also hear cases in the general Queen’s Bench list, the Administrative Court and the Court of Criminal Appeal.

Commercial Court business

The balance of work has changed since the last report was published: international insurance and reinsurance disputes, together with shipping disputes, previously dominated the Court’s time. These remain among the larger categories of business, but now alongside commercial fraud, actions arising out of commercial sale and purchase agreements, and claims relating to banking, financial services and securities transactions. ‘Now the Court sees many more banking and financial services disputes than it used to, and disputes (based either in contract or tort) between high net worth individuals from around the world now provide a considerable share of the Court’s business.[8]

Seventy per cent of cases were international.[9] About a quarter of the claim issued related to arbitration: challenges to awards, applications for injunctions or for enforcement of awards, and other applications including for the appointment of an arbitrator.

Eight hundred and sixty-four claim forms were issued in the Commercial Court[10] in 2017-2018 (slightly down on 2016-2017, when 888 claim forms were issued). There were 57 trials (up from 51 in 2016-2017). The settlement rate was 60%. About half of the trials were under a week in length, 30% were one to two weeks, 16% were three to four weeks, and 5% were over four weeks. The largest claim was for US$3bn and there were over a dozen claims worth over £100m. In addition, many arbitration claims concerned awards for extremely substantial sums, sometimes into the billions of pounds.

The workload of the Financial List, established in 2015, remains at about 15 cases a year – apparently in line with predictions.

Alison Padfield QC

  1. The impact of this on the Court features obliquely in the Report’s introduction. This thanks the Court staff for their ‘very hard work and unfailing help’, which ‘has always been given unstintingly and without complaint, despite the pressure and difficult circumstances under which the Court staff have had to work’ (Report, page 5).
  2. On 27 February 2019.
  3. Males J has since moved to the Court of Appeal.
  4. Since January 2018, Picken J has also been the Presiding Judge of the Wales Circuit.
  5. Report, page 6.
  6. See https://www.judiciary.uk/announcements/specialist-circuit-judge-judge-in-charge-of-the-london-commercial-court-pelling-qc/ (accessed 30 June 2019).
  7. An interesting point of distinction between the Commercial Court, as part of the Queen’s Bench Division (of the High Court) and the Chancery Division (of the High Court), whose 15 judges do not go out on circuit to sit in criminal trials.
  8. Report, page 7.
  9. Report, page 9: ‘A domestic case is one in which the subject matter of the disputes between the parties’ concern property or events situated in the United Kingdom and the parties are UK based relative to the dispute. For these purposes a party is “UK based relative to the dispute” if the part of its business which is relevant to the dispute is carried on in the UK, irrespective of whether it is incorporated, resident or registered overseas. All other cases are “international cases.”
  10. This excludes the Admiralty Court, for which separate figures are kept (see the Report at page 12 for details).

What’s the latest in the Commercial Court? Oral evidence in chief (possibly) and more

The report of the March 2018 meeting of the Commercial Court Users’ Group has just been published.[1]

In short:

Preparations for the disclosure pilot continue, with a likely start date of the end of 2018 or start of 2019. A new working party will consider the use of witness statements in the Commercial Court and whether, for example, there should be provision for some (limited) examination in chief on key issues. Practitioners should be aware of the Court’s Practice Direction on Electronic filing of applications to be dealt with without a hearing issued on 1 February 2018. Statistics suggest the number of cases issued is fairly stable. In arbitration claims, appeals on a point of law under s 69 of the Arbitration Act 1996 and challenges to the award on grounds of serious irregularity under s 68 rarely succeed.

In more detail:

(1) Practice and procedure

Key points of interest to Commercial Court practitioners:

Disclosure review:

The consultation has been completed and the Rules Committee will consider the results in April/May 2018.

The proposal is for a two-year pilot in the Business and Property Courts in London and on Circuit. There will be an opportunity for feedback and ongoing monitoring and development: the aim is that the proposals will be shaped and fine-tuned during a ‘living’ pilot.

The start date for the pilot is the end of 2018 or start of 2019.

Witness statements vs oral examination in chief:

A new working party is to be put together, with representatives from different interest groups, to consider the use of witness statements in the Commercial Court and possible improvements, such as whether there should be provision for some limited examination in chief, and whether this should be addressed at the Case Management Conference, or would require consideration at the Pre-Trial Review. The proposal is not for not blanket oral examination in chief.

Popplewell J told the meeting that this issue was being raised because there was a fairly widespread feeling that in this area witness statements were not saving costs, let alone representing ‘best evidence’, in contrast with good evidence in chief which is compelling and often best evidence. It was also felt to be unfair on good witnesses that they put in a statement and then faced cross-examination without any opportunity to tell their story live.

Knowles J reminded the meeting that the parties could put forward imaginative solutions at the CMC, such as live examination in chief about a key meeting, and that this would provide a way of seeing what the system was already capable of and evaluating possible routes to reform.[2]

Other points of interest:

  • Electronic filing of applications to be dealt with without a hearing: Applications on CE file which do not comply with the Practice Direction on Electronic filing of applications to be dealt with without a hearing issued on 1 February 2018 will be rejected. Both the content of the Practice Direction, and its tone, make clear that judicial patience has run out: it concludes (the last sentence is in bold in the original): ‘The Judges and staff will no longer root around in the event log trying to find the relevant material, as they do at present. Non-compliant applications will simply be rejected.
  • Commercial Court Guide: A new hard copy is likely to be available in early summer.
  • Shorter and Flexible Trials Schemes: These are currently being reviewed with a view to making them permanent once the current pilot scheme expires in October.

(2) Statistics

The latest statistics suggest that the level of claims issued is fairly stable, at least by reference to recent years.

In arbitration claims, the statistics suggest that permission to appeal on a point of law under s 69 of the Arbitration Act 1996 is granted in a reasonable proportion of cases, but that appeals rarely succeed. Similarly, successful challenges to the award on grounds of serious irregularity under s 68 are rare (statistics for successful applications for permission under s 68 do not appear in the report).

Claims issued:

  • Arbitration:
    • Claims under s 69 of the Arbitration Act 1996 (appeal on point of law):
      • 2017 (to date): applications for permission: 10 of 56 granted; appeals: one successful
      • 2016: applications for permission: nil[3] of 46 granted; appeals: nil successful
      • 2015: applications for permission: 20 of 60 granted; appeals: four successful
    • Claims under s 68 of the Arbitration Act 1996 (challenging the award: serious irregularity):
      • 2017 (to date): 47 challenges; nil successful
      • 2016: 31 challenges; nil successful
      • 2015: 34 challenges; one successful
  • Commercial and Admiralty Court:
    • 2017: 987 cases issued[4]
    • 2016: 1003 cases issued
    • 2015 1090 cases issued[5]
  • London Circuit Commercial/Mercantile Court:
    • 2017: 203 cases issued
    • 2016: 180 cases issued
    • 2015: 209 cases issued[6]

Trials: 168 Admiralty and Commercial trials were listed in 2017. Fifty-eight of those took place, which represents a settlement/adjournment rate of 65%.


  • 509 applications were listed for hearing in the Admiralty and Commercial Court in 2017, and 420 of those stood up.
  • 4,878 applications were dealt with by a judge on documents:
    • 4,646 Commercial
    • 124 Financial List
    • 108 Admiralty

Lead times:

Updated lead times are published on the Commercial Court website.

As at 13 March 2018, the date of the meeting:

  • Applications: half a day: April 2018; a day: June 2018
  • Trials: 1-2 days: September 2018; 2-3 days to a week: October 2018; longer hearings from January 2019 onwards.

Alison Padfield QC

  1. The meeting was on 13 March 2018.
  2. The current practice is set out at paragraph H1.6(b) of the Commercial Court Guide (10th Edition, 2017): ‘In an appropriate case the trial Judge may direct that the whole or any part of a witness’s evidence in chief is to be given orally. This course may be taken on the Judge’s own initiative or on application by a party. Notice of an application for such an order should be given as early as is reasonably convenient. It is usually reasonable for any such application to be made at a pre-trial review if one is held.’
  3. This is the figure stated in the report, although it seems low compared to both 2015 and 2017 to date.
  4. By way of comparison, in 2010, 1,100 claims were issued in the Commercial Court and 190 in the Admiralty Court; these figures were a decrease of 16% on 2009: see Judicial and Court Statistics 2010, pp 129-130.
  5. The report says that this figure reflects the spike that occurred before the April 2015 filing fee increase: in March 2015, there were three times the usual number of cases filed.
  6. See the previous footnote.

Expedition in the Commercial Court

There are words which have a meaning in the law which is different, and usually more prosaic, than their ordinary meaning. Expedition is one such word. An order granting expedition of a trial is of course nothing more than an order that it should take place sooner than it would if it were listed to come on for trial in the ordinary way.

The Commercial Court Guide[1] provides that the Commercial Court is able to provide an expedited trial in cases of sufficient urgency and importance,[2] and that a party seeking an expedited trial should apply to the Judge in Charge of the Commercial Court on notice to all parties at the earliest possible opportunity.[3] The application should normally be made after issue and service of the claim form but before service of particulars of claim.[4]

No further guidance is given. A summary of the relevant principles in a judgment of the Commercial Court is therefore welcome. In Apache Beryl I Ltd v Marathon Oil UK LCC[5], Males J heard an application in mid-August 2017 for an expedited trial to take place at the beginning of the next term, which was then in two months’ time or less, with a view to judgment being given, or at least a decision being given if possible, before 21 October 2017. The claimant’s position was that without a decision by 21 October 2017 as to its rights and obligations under an agreement with the defendant, it was likely to lose the benefit of a put and call option in which that was the longstop date.

Males J said that it was agreed between the parties that the decision whether to order expedition was discretionary, and that there were four factors to be taken into account:[6]

  • A threshold question of whether objectively there was urgency
  • The state of the Commercial Court list
  • The procedural history including delay by the applicant
  • Whether there would be any irremediable prejudice to the respondent

Of these, he said, the fourth factor – which might also be referred to as the good administration of justice or whether a fair trial was possible – was the most important.[7] Males J referred to the decision of the Court of Appeal in W L Gore & Associates GmbH v Geox SpA[8] for the principle that the Commercial Court seeks to assist commercial people in resolving their disputes, but does so in a way which is consistent with the interests of others and with justice and fairness, so that a critical matter in deciding to order expedition is whether a fair trial is possible.[9] If a fair trial is not possible, it necessarily follows that an unfair trial should not be ordered. On the other hand, if a fair trial is possible and there is a prospect that the court can accommodate it, the approach set out in Gore v Geox would strongly encourage the court to do so.[10]

Males J decided that a fair trial was possible and ordered an expedited trial starting on 16 October 2017, ie two months later. His assessment of the four factors inevitably depended on the facts of the case, but certain of his observations have wider relevance:

(1) The judge was willing to approach the application on the basis that it might but would not necessarily be necessary to stand out from the list another case which had been fixed for a considerable time. He recognised that if one of those trials was to be vacated, this would be at considerable expense to the parties in whatever case was selected, and that would no doubt leave them with a real and justified sense of having been unfairly treated.[11]

(2) The claimant had known about the longstop date of 21 October 2017 since December 2016, but sought expedition only in August 2017. Proceedings were started in mid-May but expedition was not sought at that stage as it could have been and should have been in accordance with the Commercial Court Guide. To some extent, the judge found, this was a deliberate, tactical decision by the claimant not to apply for expedition, although he also accepted that there was a hope that matters could be resolved by agreement and that it was only after a lengthy meeting on 31 July 2017 that it became apparent that this hope was to be disappointed.[12] The procedural history was therefore a factor against expedition, but not a decisive factor; it would be ‘disproportionately penal’ to refuse the application on this ground if it was otherwise appropriate to order expedition.[13]

(3) Particulars of Claim, a Defence and a Reply had been served together with various requests for information, and the defendants proposed to serve a Rejoinder. The judge said that the pleadings tended to make the dispute appear more complex than it really was, and that what was needed was a succinct and clear statement of each party’s position on the key issues.[14]

(4) Disclosure had not taken place, and the judge observed that this was case in which disclosure was likely to be limited – possibly to documents which each party relied on with scope for specific requests where necessary and possibly some disclosure on one particular issue which he identified.[15] There would be some factual and expert witness evidence, but this was likely to be limited.[16

(5) Urgent directions needed to be given, and the judge said that he would hold a case management conference the following day.[17]

Alison Padfield

  1. Admiralty and Commercial Courts Guide (10th Edition, last updated September 2017).
  2. Para J1.1.
  3. Para J1.2.
  4. Para J1.2.
  5. [2017] EWHC 2258 (Comm).
  6. Para 11.
  7. See paras 11-12 and 23.
  8. [2008] EWCA Civ 622.
  9. See paras 12-13.
  10. Para 23.
  11. Paras 19-20.
  12. Para 21.
  13. Para 22.
  14. Paras 26-27.
  15. Para 28.
  16. Para 28.
  17. Para 31.

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.

Alison Padfield QC

  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’.

Be prepared? – the perils of witness training

In two recent cases, one in the Commercial Court and one in the Technology and Construction Court, judges have deprecated the use of witness preparation even where the training falls short of witness coaching.

Witness coaching is prohibited by the Bar Code of Conduct[1], which states that ‘Your duty to act with honesty and integrity under CD3 includes the following requirements… you must not rehearse, practise with or coach a witness in respect of their evidence[2]. CD3, one of the Core Duties imposed on barristers by the Code of Conduct, is that: ‘You must act with honesty and integrity’.

Coaching’ is not defined in the Code of Conduct, but the Bar Council practice note on Witness Preparation[3] says:

In any discussions with witnesses regarding the process of giving evidence, great care must be taken not to do or say anything which could be interpreted as suggesting what the witness should say, or how he or she should express himself or herself in the witness box: that would be coaching.[4]

This Bar Council practice note draws heavily on the 2005 decision of the Court of Appeal in R v Momodou[5] and states[6] that there is currently no authority on these matters in relation to civil proceedings, and that until such authority emerges, it would be prudent to proceed on the basis that the general principles set out in R v Momodou also apply to civil proceedings.

In R v Momodou, the Court of Appeal made clear that discussion with a witness of his or her proposed or intended evidence in a criminal case was not permitted:

Training or coaching for witnesses in criminal proceedings (whether for prosecution or defence) is not permitted. This is the logical consequence of [the] well-known principle that discussions between witnesses should not take place, and that the statements and proofs of one witness should not be disclosed to any other witness. … The witness should give his or her own evidence, so far as practicable uninfluenced by what anyone else has said, whether in formal discussions or informal conversations. The rule reduces, indeed hopefully avoids any possibility, that one witness may tailor his evidence in the light of what anyone else said, and equally, avoids any unfounded perception that he may have done so. These risks are inherent in witness training.[7]

The Court of Appeal said that there was a ‘dramatic distinction’ between witness training or coaching, and witness familiarisation.[8] Witness familiarisation is:

pre-trial arrangements to familiarise witness with the layout of the court, the likely sequence of events when the witness is giving evidence, and a balanced appraisal of the different responsibilities of the various participants’,[9]

and the Court of Appeal added that such arrangements would usually be in the form of a pre-trial visit to the court, and were generally to be welcomed, but that out of court familiarisation techniques were also permissible. It emphasised, however that ‘None of this … involves discussions about proposed or intended evidence’.[10]

The Court of Appeal also addressed specifically the position of expert witnesses, saying that training of such witnesses in ‘the technique of giving comprehensive evidence of a specialist kind to a jury, both during evidence-in-chief and in cross-examination, and, another example, developing the ability to resist the inevitable pressure of going further in evidence than matters covered by the witnesses’ specific expertise’. As with witnesses of fact, ‘The critical feature of training of this kind is that it should not be arranged in the context of nor related to any forthcoming trial, and it can therefore have no impact whatever on it.’[11]

Guidance in the Bar Code of Conduct in a related but different context (the duty not to mislead the court) refers to the preparation of witness statements, and states that:

you are entitled and it may often be appropriate to draw to the witness’s attention other evidence which appears to conflict with what the witness is saying and you are entitled to indicate that a court may find a particular piece of evidence difficult to accept. But if the witness maintains that the evidence is true, it should be recorded in the witness statement and you will not be misleading the court if you call the witness to confirm their witness statement.’[12]

The reference to witness statements makes clear that this guidance relates to civil rather than criminal proceedings. It is not addressed in the Bar Council practice note, which as we have seen indicates that, in the absence of authority, it would be prudent to proceed on the basis that the general principles set out in R v Momodou also apply to civil proceedings. There is therefore an inconsistency between the Code of Conduct guidance and the clear statement in R v Momidou that ‘the statements and proofs of one witness should not be disclosed to any other witness’. This inconsistency is not explicable by the difference in procedure, as witness statements in civil proceedings simply take the place of oral evidence in chief: the process of taking the statement is merely the mechanism by which the evidence is put before the court, and there is no difference of principle. The extent to which the practice referred to in the Code of Conduct guidance will be regarded by the civil courts as permissible has yet to be determined, but there is no doubt that, given the clear statement in the guidance, it is acceptable from a regulatory perspective as far as barristers are concerned.

This is the legal and regulatory background against which judges in two recent commercial cases have deprecated the use of witness preparation even where such training falls short of witness coaching. Flaux J said in the Commercial Court in Republic of Djibouti v Boreh:[13]

The second reason for approaching the evidence of the Djibouti witnesses with considerable caution is that it was quite obvious that they had had witness training and been carefully prepared for giving evidence. Mr Douale admitted as much.[14]


Whilst I am not suggesting that witness training in itself is improper, (provided that it does not amount to coaching of a witness as to what to say, which would be improper) it is to be discouraged, since, as this case demonstrates, it tends to reflect badly on the witness who, perhaps through no fault of his or her own, may appear evasive because he or she has been “trained” to give evidence in a particular way.’[15]

Last month, in Harlequin Property (SVG) Ltd v Wilkins Kennedy[16] in the Technology and Construction Court, Coulson J referred to Flaux J’s remarks with approval:

I was unsurprised to learn that Mr MacDonald had had witness training. For the same reasons outlined by Flaux J (as he then was) in Republic of Djibouti v Boreh … I consider it to be a practice “to be discouraged since…it tends to reflect badly on the witnesses who…may appear evasive.” In my view, the training he received exacerbated Mr MacDonald’s natural tendency to avoid answering any difficult question.’[17]

We can expect commercial judges to continue to criticise attempts to refine the evidence which is to be given by witnesses in court. Judges want, so far as possible, to hear a witness’s evidence in his or her own words. The 2007 Report of the Commercial Court Long Trials Working Party, in which two Commercial Court judges[18] were heavily involved, said:

Inevitably, in nearly all cases the witness statements are drafted by the lawyers, although based on interviews with the witness. But this process often leads to the statements being in lawyers’ language rather than the words of the witness. Also, all too frequently the statements spend far too long summarising documents that a party wishes to have in evidence and arguing the case. Not enough time is spent recording the witness’s actual memories of relevant events.[19]

The Admiralty and Commercial Courts guide[20] similarly emphasises that the function of a witness statement is to set out in writing the evidence in chief of the witness and that as far as possible, therefore, the statement should be in the witness’s own words; that it should not contain lengthy quotations from documents; and that it should not engage in argument.[21]

Alison Padfield

  1. The Code of Conduct is in Part 2 of the BSB Handbook (2nd Edition, April 2015, updated December 2016).
  2. Rule rC9.4. There is no specific prohibition in the solicitors’ Code of Conduct (Version 18, published 1 November 2016): see Chapter 5, ‘Your client and the court’, including IB(5.9) to IB(5.11); and see this interesting article by Professor Richard Moorhead in the Guardian in relation to David Cameron’s preparation for his appearance before the Leveson inquiry in 2012.
  3. Issued October 2005; last reviewed May 2016. Practice notes issued by the Bar Council do not constitute ‘guidance’ for the purposes of the Code of Conduct: see further paragraph I6.4 of the Handbook (pages 11-12 of the pdf version).
  4. At para 17.2.
  5. [2005] EWCA Crim 177.
  6. At para 16.
  7. At para 61.
  8. At para 61.
  9. At para 62.
  10. At para 62.
  11. At para 62.
  12. Code of Conduct, para gC7.
  13. [2016] EWHC 405 (Comm).
  14. At para 65.
  15. At para 67.
  16. [2016] EWHC 3188 (TCC).
  17. At para 18.
  18. Aikens and Gloster JJ; Aikens J chaired the working party which prepared the report; I was its secretary.
  19. At para 69.
  20. Last updated 18 March 2016.
  21. See paras H1.1(i), (iii) and (v)),

Won’t you stay? – prejudice arising from concurrent civil and criminal proceedings

Civil courts are sometimes asked to stay their proceedings in order to avoid prejudice to a party who is facing concurrent criminal proceedings, for example where there is a factual overlap concerning allegations of dishonesty or fraud. The courts are slow to grant a stay, and will always try to resolve the issue by case management measures short of a stay; but they will stay proceedings, in the exercise of their discretion, in an appropriate case.

The starting point is s 49(3) of the Senior Courts Act 1981, which provides:

Nothing in this Act shall affect the power of the Court of Appeal or the High Court to stay any proceedings before it, where it thinks fit to do so, either of its own motion or on the application of any person, whether or not a party to the proceedings.

CPR 3.1(2)(f) provides that the court may, unless the rules provide otherwise, ‘stay the whole or part of any proceedings or judgment either generally or until a specified date or event’.

The party seeking to stay civil proceedings where there are concurrent criminal proceedings is typically the defendant in both sets of proceedings, although as two recent decisions illustrate, this is not always the case.

In Bittar v The Financial Conduct Authority[1], the Financial Conduct Authority, supported by the Serious Fraud Office (‘SFO’), which was the prosecutor in concurrent criminal proceedings, sought a stay of its reference to the Upper Tax Tribunal (Tax and Chancery Chambers – Financial Services) pending resolution of the SFO’s criminal proceedings in respect of a charge of conspiracy to defraud. The SFO’s objections included that the defendant might seek to introduce evidence given or findings made by the Tribunal into the criminal proceedings, and said that it, too, was entitled to a fair trial.

The Tribunal said that there was a strong presumption against a stay and that it was a power which had to be exercised with great care and ‘only where there is a test of real risk of serious prejudice which may lead to injustice[2]. It declined to order a stay, partly on the grounds that any prejudice could be mitigated by case management measures including, if necessary, deferring the hearing of the reference itself until after the criminal proceedings had concluded.[3] In the meantime, the Tribunal gave directions for the parties to prepare for the hearing, and said that the matter should be kept under review.[4]

In Polonskiy v Alexander Dobrovinsky & Partners LLP,[5] the claimant asked the High Court to stay civil proceedings which he himself had brought, and to stay a counterclaim brought by a defendant, pending the resolution of criminal proceedings against him in Russia. He relied on an alleged risk of injustice to him not in the criminal proceedings, but in the civil proceedings. This was an unpromising start and, although the court considered the matter in detail (in a judgment which was 153 paragraphs long), it ultimately declined to grant a stay. The defendant in the civil proceedings tried unsuccessfully to persuade the court that the test to be applied was that a stay should be granted only in ‘rare and compelling circumstances’,[6] which is the test usually applied where the court is being asked to stay civil proceedings in favour of other civil (court or arbitral) proceedings.[7] The court rejected this submission and instead applied the principle, derived from earlier decisions of the Court of Appeal, that the court has a discretion to stay civil proceedings until related criminal proceedings have been determined, but that this is ‘a power which has to be exercised with great care and only where there is a real risk of serious prejudice which may lead to injustice’.[8]

Alison Padfield

  1. [2016] UKUT 265 (TCC).
  2. At para 16.
  3. See para 17.
  4. See para 17.
  5. [2016] EWHC 1114 (Ch) (Mr G Moss QC, sitting as a deputy judge of the High Court).
  6. See paras 135-139.
  7. See eg Reichhold Norway ASA v Goldman Sachs International (a firm) [2000] 1 WLR 173, CA, 186 (Bingham LJ).
  8. See paras 133 and 139; the quotation is from R v Panel on Takeovers and Mergers, ex p Fayed [1992] BCC 524, CA, 531 (Neill LJ); approved: Attorney-General of Zambia v Meer Care & Desai (a firm) [2006] EWCA Civ 390, para 36 (Sir Anthony Clarke MR).