NATL Amusements (UK) Ltd and Others v White City (Shepherds Bush) Ltd Partnership and Another: TCC 16 Oct 2009

Application for transfer of claim from QBD to TCC. Akenhead J considered an application to transfer a claim from the Chancery Division to the Technology and Construction Court. After reviewing the authorities, he said: ‘It is probably unnecessary to enter into a debate as to precisely what the pre-CPR test was for the transfer of proceedings to another division. The test was undoubtedly appropriateness or inappropriateness. All things being equal, as in the Pantheon case, the action would stay where it was. If on balance it was more appropriate that another division or specialist court within another division should deal with the case, it would not be a wrongful exercise of discretion to transfer it. The wording of RSC Ord 4, r 3 undoubtedly gave the court a discretion and it would be difficult to say that that was a wrongful exercise of discretion.
When one comes to the CPR, one needs always to bear in mind the overriding objective. Indeed, the court must give effect to the overriding objective in interpreting any rule: CPR r 1.2. That objective is the just dealing with cases. That involves amongst other things dealing with cases in proportionate ways bearing in mind amongst other things the complexity of the issues and the importance of the case, expedition and fairness. One of the objectives of the drafters of the CPR was to give the courts a greater flexibility than they had previously had.’ and ‘In my view, the court is entitled to have regard to the relative appropriateness of the different divisions or specialist courts within them in considering whether the transfer should be made. Thus, given the increasing familiarity with and even greater competence of judges within the different divisions to deal with matters outside the traditional expertise of judges within their allotted divisions, the judge considering the transfer application should have regard to what is the more or most appropriate court to try the particular case. The judge considering the application must consider on the basis of the pleadings and other information put before the court upon what issues the bulk of the time, cost and resources involved in trying the case (and certainly the issues to be dealt with first) will be directed towards. Put another way, the court needs to ascertain if possible where and within what areas of judicial expertise and experience the bulk or preponderance of the issues lies. If there is little or only insignificant difference between the two venues, the discretion will generally be exercised in favour of the status quo to reflect the fact that a claimant is entitled to issue proceedings in whatever division it thinks fit and that either court is sufficiently experienced in addressing the issues. I would add that where it is clear that significantly greater expedition will be achieved in one court rather than another, that would be a material factor to be taken into account; expedition is a factor recognised within the overriding objective.
In essence, in my judgment, the court should take a pragmatic approach to determine the most appropriate venue, taking into account the experience and expertise generally of judges therein, at any time and cost saving to be achieved in one venue rather than the other. It is not the case that the party seeking transfer must establish that it would be inappropriate for the case to remain in the division in which it was issued. However, if it were to establish that factor, that would be a very strong ground in favour of transfer.’


Akenhead J


[2009] EWHC 2524 (TCC)




England and Wales

Cited by:

CitedAppleby Global Group Llc v British Broadcasting Corporation and Another ChD 26-Jan-2018
Claim by international firm of lawyers for breach of confidence against publishers who had received and published that information. The court now considered which division of the High Court should hear the claim.
Held: Rose J considered the . .
CitedMezvinsky and Another v Associated Newspapers Ltd ChD 25-May-2018
Choice of Division and Business Lists
Claim that the publication of pictures of the young children of the celebrity claimants had been published by the defendant on-line without consent and without pixelation, in breach of their human rights, of data protection, and right to privacy. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 04 August 2022; Ref: scu.376269