Civil litigation brief

The issue of whether a matter should be transferred to the Technology and Construction Court can be controversial at times. I have known several county court judges complain that the case before them was unsuitable and should have been transferred. By then, of course, it is often too late.

The criteria governing transfer were considered by Mr Justice Coulson in Collins v Drumgold [2008] EWCA 584 (TCC) when all the defendants in that action applied to transfer to the TCC, an application which was opposed by the claimant. The judge observed that: 'Applications to transfer cases into the Technology and Construction Court are not uncommon, but there remains a certain amount of confusion and uncertainty as to both the procedure to be adopted and the principles which govern such an application. That confusion has been apparent in this case. For those reasons I hope that it will be helpful '¦ to set out both the correct procedure on a transfer application and the relevant guidelines that will govern whether or not such an application is successful.'

The correct procedure on transfer

An application to transfer from the county court to the High Court is made under CPR 30.3. An application to a specialist list (such as the TCC) is made under CPR 30.5. In each case the application to transfer is made to the receiving court with notice to the relevant county court.

In the Collins case the claimant's solicitors suggested that the application had first to be made to the county court pursuant to CPR 30.2(3). However, the judge held that that rule is solely concerned with transfers from one court to another. It is of no application in an application to transfer to the TCC.

The criteria for transfer

The matters which the court hearing the application to transfer must consider are set out in CPR 30.3(2). The judge observed that the first five criteria are of particular relevant to transfer to the TCC, these are:

(a) the financial value of the claim and the amount in dispute, if different;

(b) whether it would be more convenient or fair for hearings (including the trial) to be held in some other court;

(c) the availability of a judge specialising in the type of claim in question;

(d) whether the facts, legal issues, remedies or procedures involved are simple or complex;

(e) the importance of the outcome of the claim to the public in general.

The approach to be adopted by the TCC

The judge stated that there were a number of matters that the court would consider in addressing the issue of whether a transfer should take place from a county court to the TCC. These are:

(1) Does the dispute arise out of in connection with one of the types of claim which paragraph 2.1 of the Part 60 Practice Direction identifies as being a claim suitable for the TCC? The TCC will consider this question broadly, on the basis that paragraph 2.1 is a list of examples only. A dispute which is, or arises out of, or has a connection with, one of the types of claim identified there will therefore be considered by the TCC as being appropriate (subject to the other factors) for possible transfer.

(2) If the claim arises out of or has a connection with one of these types of claim does the financial value of the claim and/or its complexity mean that, in accordance with the overriding objective, the case should be transferred to the TCC ? Financial considerations can be of some importance but what will be critical is the view that the court takes of the complexity of the issues in the action itself. The more complex the dispute the greater must be the benefit of transferring it to the TCC.

(3) Questions of convenience to the parties may be important. However, in cases where the relevant TCC and county court are not far apart geographically these may not be of any great significance. However, the court must take into account wider factors such as the High Court cost levels will be higher than those in the county court.

Addressing the issue on the facts of the case

The judge held that this was a case that was suitable for transfer to the TCC because of:

(1) Type of claim. The action was a building dispute. In addition there were a number of related claims for professional negligence relating to construction. The judge observed: 'This is, therefore, precisely the sort of claim which, subject to the other factors, ought to be transferred to the TCC.'

(2) Financial value. The claim was worth around £300,000. This was well over the High Court threshold. While theTCC will not automatically accept transfers from the county court simply because they were over the £50,000 lower limit, the higher the value of the claim the greater the prospect that the TCC will accept such a claim. Value is a yardstick to measure importance and complexity but is not more than that.

(3) Complexity. Complexity will be the critical factor in the vast majority of transfer applications. The current case was a case involving interrelated issues of law, geotechnics and standards of care and professional duty. On this basis it was overwhelmingly a case for transfer.

(4) Convenience '“ general. This was not a major factor in the current case. It would be rare for factors of convenience to be of great significance. The TCC in London was equidistant to the parties homes. Both courts were of equal convenience.

(5) Convenience '“ costs. The judge held that the question of costs was always something that the court should bear in mind because of the potential costs consequences of transfer from the county to the High Court. However, the present claim was brought by way of a subrogated claim and the costs were being met by the claimant's insurers. Furthermore, a specialist court like the TCC ought to be able, by careful case management, to reduce the costs which the parties would otherwise incur. The transfer may actually reduce the costs incurred.

(6) Was the application made too late? The application to transfer was made two years after the proceedings were started. However, the action was still at a relatively early stage '“ there had been no exchange of witness statements or experts' reports. Consequently the application had not been made too late.

l An application made two years after proceedings had started was not made too late because, procedurally, the matter was barely under way. However it would be prudent for an application to be made promptly.