Hearing difficulties

Where a case is heard or dealt with is not always straightforward, says District Judge Stephen Gerlis

Significant numbers of cases travel around the country for a variety of reasons, and two recent decisions illustrate the extent to which courts are prepared to determine the best place for a case to be heard.

Automatic transfer

Principally, there are two instances where a case will be transferred without the intervention of a judge.

The first is automatic transfer under the Civil Procedure Rules 1998 (CPR), rule 26.2.

If a claim is for a specified amount of money, was not started in the court which is the defendant's home court and the defendant is an individual filing a defence, the case will be automatically transferred to the defendant's home court.

The 'home court' is defined by CPR rule 2.3 as the court for the area in which the defendant resides or carries on business.

It will be noted that the definition does not include the defendant's solicitor's local court, where he puts his professional address on the defence.

Some may question why such preference is shown for the defendant.

In Pepin v Taylor (2002) Lawtel, 10 October, the Court of Appeal, upholding the master's decision to transfer a case from London to the defendant's home court of Leicester, said that a defendant does not choose to be sued and that is a strong reason for fixing a venue for the proceedings convenient for the defendant.

The fact that he may choose to counter-claim detracts to some extent from that principle, but not considerably.

The other important provision for automatic transfer, CPR rule 13.4, states that where the defendant is an individual against whom a judgment has been obtained for a specified sum of money in a court other than his home court, an application by him to set aside judgment will be transferred to his home court.

Understandably, judgment creditors may feel that this is somewhat harsh, especially where the application stands little chance of success.

Manual transfer

The court has a general power under CPR part 30 to transfer a case.

The criteria for doing so are clearly set out in CPR rule 30.3 of which by far the most contentious is sub-paragraph (2)(b) - 'whether it would be more convenient or fair for hearings (including the trial) to be held in some other court'.

When first seeing the papers on allocation, an astute district judge will turn to the claim form to see what the addresses are of the parties.

Because the rules permit a claimant to issue proceedings in any county court it does not necessarily follow that proceedings will be issued in a court with which any of the parties have any connection.

There are many reasons for this.

However, by far the most common reason is that, while the parties may not be situated in the area of the court, the claimant's solicitor is.

It is unlikely that the court will give considerable preference to the convenience of the solicitor when deciding where a case should be conducted or heard.

It is much more likely that the court will consider, as a priority, the convenience of the parties.

Consider also the following scenario - the claimant, an individual, issues proceedings for personal injuries arising out of a road traffic accident in his home court.

The defendant, an individual who lives many miles away, files a defence admitting liability but denying quantum.

Such an action will be automatically transferred, according to rule 26.2, to the defendant's home court.

However, it is clear that this is really only a disposal or assessment of damages, and that just the claimant will be giving evidence.

Under such circumstances the court would be acting reasonably in transferring the case back to the claimant's court.

Then there is the 'middle court' scenario.

Where parties live in distant, different parts of the country it is not unknown for the case to be transferred to a court equidistant between the two.

Which court?

Although there is a directory which lists the areas covered by each court, this is often not consulted.

The judges of recipient courts frequently complain that cases have been wrongly transferred to them.

Nowhere is this more acute than in the London area, where boundaries cannot be easily guessed at and where more than a rudimentary geographical knowledge would be of assistance.

For multi-track cases to be transferred to the London area there is an added complication.

The following are the words of the designated civil judge for the London Group of County Courts, Judge Paul Collins CBE:

'There is only one trial centre for London.

It is the Central London Civil Justice Centre.

All non-housing multi-track cases of more than one day are sent here by London courts, except those which go to the Mayor's & City of London Court by local arrangement.

Judges outside London who send multi-track cases of more than one day anywhere else in the London Group are building delay and uncertainty into litigation.'

There is no provision in the CPR which gives litigants a right to insist on a court of their own choosing, other than for issue of proceedings in the first place.

But in Fradkina v Network Housing Association (2002) Lawtel, 13 November, on appeal from the High Court, the Court of Appeal upheld the decision to transfer cases from one county court, where it should have been heard, to another, because of a complaint from a litigant.

The High Court accepted that 'the court had not dealt adequately with the consolidated cases in the past' and transferred the case away.

The trial

Where the final hearing takes place is also a matter for the discretion of the court.

Most of the time it will be at the court that has handled the matter throughout but this is not an inflexible situation.

It is much more likely for a different venue to be provided for the trial where the claim is a fast-track or even multi-track case.

Trial centres reserve the right to distribute their work according to the availability of judges and court space rather than encourage delay by insisting that cases are heard in a particular court.

Thus it is not unusual for a fast-track or multi-track case to be sent out at short notice from the trial centre to one of the feeder courts to be heard.

On-line issue is already available for certain cases and is proving popular.

The intention seems to be to move all 'back-room' work to a limited number of regional centres while the court buildings become hearing centres.

Other premises, such as magistrates' courts, may also be 'borrowed' for hearings.

The idea is to increase the flexibility of the courts in deciding where matters should be heard.

While regard will certainly be had to the convenience of the parties, this may well be set against the desirability of hearing cases sooner rather than later.

District Judge Stephen Gerlis sits at Barnet County Court