THE trial was condemned as the “most expensive fishing expedition in history” and the legal system nothing more than a “profitable monopoly”. Now, in the wake of that blistering attack by Mervyn King, the Governor of the Bank of England, over the BCCI action, the Lord Chief Justice is to chair a summit on how to avoid such huge and costly trials.
The forum next month will be attended by commercial court judges along with court users, including representatives of the Bank. It is hoped that a plan for reform will emerge. Mr Justice Aikens, 58, who has just stepped down as the judge in charge of the commercial court, says: “Lessons will be learnt. These are large trials because they raise issues that are complicated and very serious.” If he’d had his way, the case might have ended much sooner: as counsel he pleaded to have the case struck out but the House of Lords disagreed, saying there was an arguable point.
Like Equitable Life, BCCI was an extreme case. But it has nonetheless put commercial litigation under the microscope and senior judges and lawyers are discussing possible reforms. At a recent seminar chaired by the former Lord Chief Justice, Lord Woolf, one top commercial silk, Lord Grabiner, said: “Complex litigation cannot be swept under the carpet.” The commercial court worked in a “fabulous way with some outstanding judges” but there was scope to improve, he said, questioning “Rolls-Royce elements” such as the right to go to the House of Lords when two courts have ruled one way.
But it is more than a matter of how such trials are managed. Mr Justice Aikens is pushing through plans for a new commercial or business court — long urged by the City as well as the judiciary. “It’s important because the commercial and Chancery judges do the top-of-the-range litigation and, by and large, the corporations who do this litigation regard it as a last resort and want it to be effective. And it can’t be unless we get the IT and modern communications facilities we don’t have now.”
The facilities are dire. “There’s just one video-conferencing suite in the Royal Courts of Justice (RCJ), just one court where a judge can be in video link with witnesses and other parties. Frankly, for international commercial litigation, you can’t have these restrictions — you have got to be flexible.”
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In fact the commercial court has a reputation for modernising. Tieless and in shirtsleeves, Mr Justice Aikens (club: Groucho; recreations: music, wine, le Pays Basque) seems to typify the approach of its judges who dislike wigs and robes, chiefly because their many foreign litigants are unused to them. In 80 per cent of all claims issued one party is from outside the jurisdiction. Most claims are for more than £1 million and can be up to £1 billion. “It’s another reason why we must have a modern business court because the guys out there are right on top of it; if they think they’ll have to go back to quill pens they won’t like it.” He adds: “It’s fair to say that if left to decide we’d do away with robes altogether in commercial disputes. If there’s an opportunity not to wear them we take it.”
The new court building will be purpose-built at no capital cost to the Exchequer in the area of the RCJ and leased by the (soon to be announced) developer to the Court Service for 30 years. If commercial work drops it can be redeployed. The space would be flexible. “The idea is to have no fixed furniture other than the judge’s bench — tables and chairs to fit the case and much more use of computers and electronic production of evidence.”
All 14 High Court judges nominated for commercial work, plus 18 Chancery judges, two full-time construction and technology judges plus six Chancery masters and six bankruptcy registrars would be under one roof. But it won’t happen soon. Lord Woolf has said that a new business court is as important as a new supreme court and arguably more urgent. Yet Mr Justice Aikens predicts that it will be close as to which comes first: the target is late 2009 to mid-2010.
Meanwhile, reform cannot wait: the court’s workload is rising. “Anything we can do to keep down litigation costs and provide an efficient forum is a must.” The number of claims fell from 1,213 in 2002 to to 973 in 2005. More trials have settled or been adjourned at the parties’ request — 65 per cent of all cases given trial dates. But increased efficiency has also meant an increase in the number of trials held to 97 in the year up to July 2005 compared with 58 the year before. Mr Justice Aikens also secured a change last year to ensure that cases involving competition law stay in the commercial court and do not transfer to the Chancery Division.
He set up a project for computer case management that involves an e-diary, logging electronically all cases and the steps to be taken. A pilot is also running with several City law firms to see if proceedings can be issued online, documents lodged and payments made, electronically. “If we wait for the new building it’ll be five years before we reap the benefits. This is to show it can be done and is wanted by the customers.”
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As for those big exceptional trials, he is against any move to a more inquisitorial system as some suggest. “If a judge has to do all the work now done by counsel, it will be less efficient, more costly and need twice as many judges.” He does, though, favour time limits on submissions and cross-examinations as in arbitrations. But no amount of cutting speeches will create a modern business court to bolster London as the centre for international disputes. Without that, he says, the big corporate litigants will just go elsewhere.