In the face of increasingly sophisticated international competition, are our courts doing enough to stay up to date? John MacKenzie of Shepherd & Wedderburn says there is more work to be done in the County Courts.
In 2014, a report for the Lord Chief Justice identified “complacency” as the primary threat to London’s Commercial Court and its reputation as the premier destination for international dispute resolution. The report was authored by Khawar Qureshi QC, a leading commercial silk and then chair of the The City UK Legal Services group, designated by the UK Ministry of Justice as the lead organisation to promote UK legal services internationally. It surveyed the views of senior litigators across 39 law firms, including the entire magic circle, and 10 commercially focused chambers. Technological failures were amongst the most commonly voiced concerns. Specifically, an inability to file or receive many documents electronically and a Wi-Fi system that was wholly reliant on BT open-zone. In total, use of technology before and during trial in the Rolls Building was deemed ‘unsatisfactory’ by almost a quarter of respondents.
The court’s need to adapt to such criticisms is particularly important given the ever expanding number of dispute resolution hubs vying for London’s international business. The Singapore International Commercial Court and Dubai International Financial Centre Courts are leading the way in this regard, but there have been comparable developments in Qatar, Abu Dhabi, India and the Netherlands. At the time of Qureshi’s survey, Dubai and Qatar had already adopted the ‘INTERCOMM’ IT system, a particular cause for concern given the system had originally been designed for use by the London Commercial Court.
These sophisticated offerings add to competition from established specialist commercial courts, such as Delaware’s Court of Chancery, the Commercial Division of the New York State Courts and the International Division of the Paris Commercial Court. It is clear that the days of litigation coming to London simply because it is, in the words of Lord Denning, “a good place to shop in”, have long since passed.
A focus of the government’s recent £1billion court modernisation project was the introduction of electronic filing and case management. After a successful trial period, all claims, applications and documents in the Commercial Court must now be filed online via the Ce-File system. This is a welcome move away from relatively labour and cost intensive paper processes and facilitates the inclusion of further advancements such as video-link submissions and witness evidence.
Advancements have also been made to the electronic disclosure process, following the High Court’s endorsement of automated searching by ways of predictive coding in the electronic disclosure process in Pyrrho Investments Ltd  EWHC 256. This brought the English position into line with the District Court of New York and Irish High Court’s commercial court and, where used correctly, will bring increased efficiency and reduced costs.
Highest number of litigant countries
The results speak for themselves. Recent figures published by Portland Communications confirm that London has maintained its status as the international dispute resolution centre of choice. The court is increasingly global, with 2016-2017 seeing foreign litigants make up 72% of all cases. There was also a joint record for the highest number of litigant countries of origin, with 71 represented. Return business was also promising, with litigants from countries such as Singapore, Russia and Kazakhstan frequently choosing London to resolve disputes relating to their home country.
High calibre judiciary
Continued investment in the Commercial Court, particularly in technology, has no doubt had an important part to play. London’s true competitive advantage has always been its high calibre judiciary and ability to provide fair hearings in a relatively timely manner. Technological advancements have led to greater efficiencies and economies, alleviating budgetary constraints and freeing up judicial time and resources.
It is less clear whether progress is filtering down to the County Courts. With the exception of Money Claim Online and the housing repossession portal, the County Courts are significantly behind the curve. E-filing with the County Courts typically involves filing by email rather than through a dedicated portal. This causes issues with emails not being processed, being 'lost', or being rejected due to page limits which are imposed (25 pages double sided is the limit for an e-filed claim). This ailing technology has exacerbated related inefficiencies caused by understaffing and significant budget cuts.
Recently, the Scottish Courts and Tribunal service announced the Phase 1 launch of their new “Civil Online” platform. Once fully developed, the system will enable the creation of a digital case file, under which claims, responses and the submission of documents can all be managed online. The first phase of this initiative is to go live in March 2018, allowing users to access case tracking information online, including the date and time of any hearing and the description of documents lodged in the case or created by the court. The success of an all-in-one system for lower value claims could provide the basis for similar reform in the County Courts of England and Wales.
Continued investment in emerging technologies has played an important role in ensuring the London Commercial Court can continue to provide the levels of quality on which its reputation is built. For now, London appears to have held off its international challengers. The application of similar technologies to lower value claims in the County Courts has a way to go, particularly when compared to developments north of the border.
John MacKenzie is a partner in the Commercial and International Disputes at Shepherd and Wedderburn LLP