South Lodge Flats Ltd v Malik

The High Court may transfer County Court proceedings where it considers transfer desirable, applying the criteria in the Civil Procedure Rules. Substantial factual or legal overlap with separate High Court proceedings does not by itself justify transfer. The court must weigh convenience, fairness, complexity, specialist judicial availability and other relevant factors, while giving proper weight to delay and procedural conduct. An application made very late, after substantial participation in the County Court proceedings and shortly before trial, is likely to be refused where transfer would derail a prepared trial. Concerns about disclosure or witness evidence should ordinarily be addressed within the existing proceedings unless they establish a proper basis for transfer.

The claimant, South Lodge Flats Ltd, brought County Court proceedings concerning access to and occupation of a flat. The defendants advanced a claim that the flat was held on trust for them as partnership property. A related High Court claim was later issued concerning the alleged partnership and other properties.

Vaqar Malik applied to transfer the County Court proceedings to the High Court so that the overlapping claims could be heard together. The application was made shortly before the County Court trial, after substantial participation in those proceedings. The central issue was whether transfer was desirable under section 41(1) of the County Courts Act 1984 and CPR 30.3.

1. Application refused. The power under section 41(1) of the County Courts Act 1984 had to be exercised in accordance with the criteria in CPR 30.3(2).
2. The value of the flat was within the usual range of cases heard in the specialist Chancery List of the Central London County Court. Convenience and fairness were broadly neutral between the County Court and High Court, but transfer would cause considerable inconvenience by derailing a trial listed for January 2020.
3. Particular weight was given to the extreme lateness of the application. Vaqar Malik had participated extensively in the County Court proceedings, with legal representation including leading counsel, and had advanced a cross-claim based on the same underlying allegations. The transfer application was first made on the day the trial was due to commence and after the date contemplated by paragraph 2.4 of Practice Direction 29.
4. The existence of overlapping facts, issues, documents and evidence did not outweigh the delay and procedural history. The wider partnership issues could be addressed in the County Court proceedings, including arguments about the relevance or admissibility of disclosure and evidence and any inferences arising from their absence.
5. The remaining factors, including specialist judicial availability, complexity, public importance and court facilities, were neutral or provided no support for transfer. An early application for consolidation might have had force, but it would not necessarily have followed that any consolidated proceedings should be heard in the High Court.