This action was started in the Mercantile Court in the Bristol District Registry. The claim arises out of a contract for the provision of software by the Claimant (“CFH”) to, in effect, the Second Defendant (“NAGE”), although CFH was in fact a subcontractor to the First Defendant (“OCE”).
NAGE has applied to this court, the TCC, for the action to be transferred to the TCC in London. It relies on the subject matter of the dispute being one that is peculiarly within the experience of the TCC judges in London; the size, complexity and importance of the case—which it says justifies listing before a High Court Judge; and the fact that London is the most convenient and expeditious forum for the case to be dealt with, both in terms of the trial and case management.
Both the Mercantile Court and the TCC are a “specialist list” within the meaning of CPR 30.5 (2) and (3). But these proceedings are also in a District Registry, namely Bristol.
CPR 30.5 (2) provides that:
“A judge dealing with claims in a specialist list may order proceedings to be transferred to or from that list.”
CPR 30.5 (3) provides that:
“An application for the transfer of proceedings to or from a specialist list must be made to a judge dealing with claims in that list.”
Accordingly, in this case an application to transfer the claim from one specialist list to another specialist list can be made to a judge dealing with claims in either list: see NATL Amusements (UK) Ltd & others v White City (Shepherd's Bush) Ltd Partnership & others [2009] EWHC 2524 (TCC) , Akenhead J. This application could therefore be made either to a judge dealing with claims in the Mercantile list in Bristol or to a judge dealing with claims in the TCC list in London.
But as I have said, the application before me also involves the transfer of the claim from the Bristol District Registry to the Royal Courts of Justice in London. An application to do that must be made under CPR 30.2 ( 4). CPR 30 .2(6) provides that an application made under paragraph (4) must be made to the District Registry in which the claim is proceeding.
The difficulty with this application arises from the fact that both CPR 30.2 and CPR 30.5 are engaged at the same time. Since under CPR 30.5 an application for transfer must be made either to a judge who deals with claims in the specialist list to which the proceedings are to be transferred or to a judge who deals with claims in the specialist list from which the proceedings are to be transferred, whereas under CPR 30.2 the application for transfer can be made only to the district registry in which the claim is proceeding, in my judgment the requirements of both rules can only be met if an application such as this is made to a judge of the Mercantile Court in the Bristol District Registry.
Two authorities have been cited to me, which for the sake of completeness I should mention at this stage, although it will be apparent from what I have already said that I have felt able to determine this aspect of the application with very limited reference to only one of them. The first is a decision by Ramsey J in Neath Port Talbot Borough Council v Currie and Brown Project Management [2008] EWHC 1508 (TCC) . In that case there was an application under CPR 30.2 (4) for transfer from a TCC list in the Bristol District Registry to the TCC list in London. Ramsey J heard the application sitting as a judge of the TCC in the Bristol District Registry. He held that the application had to be made to the District Registry. He observed, at paragraph 13 of his judgment, that: “The Judge in Charge of the TCC does not and cannot generally become involved in the allocation or assignment of cases which are issued at the court centres outside London” .
The second case, which I have already mentioned, is the decision of Akenhead J in NATL Amusements (UK) Ltd & others v White City (Shepherd's Bush) Ltd Partnership & others . In that case there was an application made to the TCC to transfer to the TCC proceedings that were currently in the Chancery division in London. The application clearly fell within CPR 30.5 . It was submitted that CPR 30.5 (1) should be read so as to mean that it was a High Court Judge in the division in which the proceedings were currently listed who had the jurisdiction to order the transfer, rather than the High Court Judge of the division to which it was proposed that the proceedings should be transferred. Akenhead J held that the rule (2) should be read as meaning what it said when it referred to a power to order proceedings to be transferred “to or from” a specialist list by a judge dealing with claims in that list. It can be seen, therefore, that each case was concerned with a different situation and that in each case only one part of the CPR was engaged. Any perceived conflict between the two decisions does not exist. This case is different because both CPR 30.2 (4) and CPR 30.5 are engaged.
I am gratified to note that HH Judge Havelock-Allan QC is recorded as having reached the same conclusion (see the e-mail dated 2 March 2010 from Bristol Mercantile Listing, at page 11 of exhibit “CJGH 2”). It seems to me that it is a matter for the Judge in the District Registry who hears the application to transfer the proceedings to the TCC in London to decide whether or not to raise the matter with the Judge in Charge of the TCC in London before transferring the proceedings (if that appears to be the appropriate course).
That said, in my view it would not be consistent with the overriding objective for me to refuse to entertain the application at all simply because it has been made to the wrong court when I have heard submissions from three parties over 2 1 /2 hours.
I therefore turn to the merits of the application.
The grounds on which the application is made
Mr Alex Charlton QC, who appears for NAGE, has submitted forcefully that this claim involves technical processes that the court will need to understand in order to be able to construe the contract under which those processes were required to be performed. He gives the following examples: What was actually done to the data by CFH? What level of storage capacity was contemplated by the scope of work contemplated by the original contract? What was meant by “printing to Docstore”? In addition, he submits, the court will have to understand the technical processes in order to assess the reasonableness of the charges claimed by CFH.
By contrast, Mr Gerard McMeel, who appears for CFH, and Mr Gavin Hamilton, who appears for OCE, each submits that this is really a dispute about the construction of the contract and whether or not certain work that was requested by NAGE fell within the original scope of work under the contract and subcontract.
The TCC is the appropriate court to deal with a claim that involves issues or questions which are technically complex or if a trial by a TCC judge is desirable: see CPR 60.1 . The latter limb of the rule is, I think, intended to cover a case such as a typical building or engineering contract dispute involving questions of construction of a standard form of contract with which TCC judges will be familiar even though there may be no issues of technical complexity.
However, Mr Charlton submits that, in order to decide which is the most appropriate court to hear the claim, the court must consider not just the subject matter of the claim but also factors such as the convenience of the parties, costs, expedition (in terms of availability of hearing dates) and whether or not the claim should be heard by a High Court Judge.
Before I consider each of these particular factors I should decide what is the basis upon which and criteria subject to which the court should proceed in deciding whether or not a claim should be transferred from one court or list to another.
The most recent decision on this is that of Akenhead J in NATL. After considering the few relevant authorities, he said this (at paragraphs 33 and 34):
“33. In my view, the court is entitled to have regard to the relative appropriateness of the different Divisions or specialist courts within them in considering whether the transfer should be made. Thus, given the increasing familiarity with and even greater confidence of judges within the different divisions to deal with matters outside the traditional expertise of judges within their allotted divisions, the judge considering the transfer application should have regard to what is the more or most appropriate court to try the particular case. The judge considering the application must consider on the basis of the pleadings and other information put before .