Natl Amusements (UK) Ltd & Ors v White City (Shepherds Bush) Ltd Partnership & Anor

Under CPR Part 30.5, a judge in the Technology and Construction Court may order proceedings to be transferred from another High Court Division or specialist list. The power is discretionary and must be exercised to secure the just disposal of the case under the Overriding Objective.

The court should adopt a pragmatic approach. It should assess where the bulk and preponderance of the factual, legal and technical issues lie, having regard to judicial expertise, case-management needs, expedition and cost. The fact that proceedings were started in one Division favours retaining them there where the venues are substantially equivalent, but it does not impose a requirement that remaining there be inappropriate before transfer can be ordered.

The claim arose from an agreement for lease under which developers were to construct a cinema shell and core in accordance with contractual plans and critical dimensions. The claimants purported to rescind after alleging numerous non-compliances. The defendants treated that act as a repudiation and issued an application to transfer the claim, counterclaim and additional claims from the Chancery Division to the Technology and Construction Court.

The parties agreed that the secondary issues were TCC business. The dispute concerned whether the TCC had jurisdiction to order an inter-Division transfer, the applicable criteria, and whether the technical, construction and factual issues made transfer appropriate.

1. Jurisdiction. The application was properly made to the TCC. Section 65(1) of the Supreme Court Act 1981 and CPR Part 30.5 confer jurisdiction to transfer proceedings between High Court Divisions. CPR Part 30.5(2) and (3) expressly permit a judge dealing with a specialist list to order transfer to or from that list.
2. Applicable approach. The power is discretionary. It must be exercised to achieve the just disposal of the proceedings in accordance with the Overriding Objective. Earlier authorities concerning the test of appropriateness remain relevant, but the court is not bound by pre-CPR practice and must apply the wider CPR considerations.
3. The court should identify the issues which will consume the bulk of the trial’s time, cost and resources, including issues requiring determination first. It should consider the relative expertise and experience of the proposed venues, the technical character of the dispute, case-management advantages, expedition and cost. If the difference between venues is insignificant, the status quo will generally be retained because a claimant may issue proceedings in any Division. Establishing that the existing venue is inappropriate is a strong ground for transfer, but is not a precondition.
4. Application. The primary issues required detailed examination of construction and engineering drawings, professional exchanges, design and construction practice, alleged variations, waiver and estoppel over nearly three years. Those matters predominated, while the remaining issues were accepted to be TCC business. The TCC was therefore the most appropriate venue. The modest time advantage supported, but did not independently determine, the decision.
5. The application was allowed and the claim transferred to the TCC. The defendants were awarded costs, summarily assessed at £15,000. Permission to appeal was refused.

Not an appeal. The proceedings had been commenced in the Chancery Division and were transferred to the Technology and Construction Court on the defendants’ application.