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Birmingham Business and Property Court Users Group Meeting

On Wednesday 24th October 2018 we attended the Birmingham Business and Property Court Users Group Meeting, chaired by Mrs Justice Carr and Mr Justice Birss. The meeting also had the honour of being attended by Sir Terence Etherton, the Master of the Rolls, along with Lord Justice Flaux, and was well attended by local solicitors and members of the Bar.  

A number of current issues were discussed with some useful observations made which we thought may be of interest to our clients and so below is a summary of what was discussed. Many thanks to our new pupil, Natalie Kearney, for putting the minutes together. 

CE-Filing 

A member of staff from The Rolls Building attended and gave an update on the nationwide roll-out of the CE-Filing system. They confirmed that the roll-out is forecast to last a further 2 years, with QBD next in line as it has the oldest legacy systems. The regional Business and Property Courts (BPC) are to follow QBD. 

We were told that the technical build is scheduled to be complete by Christmas, with the internal release to staff and judges in January 2019. They are at this stage unable to provide a definite date for switching on the external element, however it was thought that the roll-out in QBD and the BPC should take around 2 months each and therefore it would probably be rolled out around March/April 2019. 

The Practice Directions for the Rolls Building and the QBD are done. It is expected that the PD for the BPC are to be substantially the same. 

CE-File will not be mandatory from its initial release; however, the aim is for it to be mandatory for professionals after a phasing-in period, but not for litigants in person. 

Updates on this will follow. 

Reform Programme 

Master of the Rolls, Sir Terence Etherton also confirmed that this is part of an ongoing reform programme, running until 2022. The aim is to improve the system beyond e-filing, hopefully with the aim of running paperless trials. This would not be possible on the CE-Filing system as designed so it will require the development of a new system. 

Specialist Lists – Intellectual Property 

Mr Justice Birss confirmed that early next year the aim is to introduce the IPEC list into regional BPC and there is a process underway currently to identify judges willing to have training. The first cases to be heard are likely to be small claims track trials. 2 DJs in Birmingham have already volunteered to undertake the necessary training. 

Specialist BPC DJs 

More DJs are to be added soon and recruitment is under way for DDJs. 

Birmingham has seen a significant increase in insolvency work, which may reflect the fact that the Insolvency PD changed in July 2018, with Birmingham a centre for specialised insolvency work. This means that there is a need for specialist DJs. 

Shorter and Flexible Trials Scheme 

This was piloted in the Rolls Building and is now permanent in all BPC. There appears to have been little uptake, although the shorter trials scheme has been more successful than the flexible trials scheme. The benefits are that a hearing date can be obtained more quickly, and appeals can also be expedited and Mrs Justice Carr was keen to see in increase in its uptake. 

Urgent Applications 

Concerns have been raised by Judges as to the limited information they receive when an urgent application is received at the counter. Quite often they simply have the signed application and that inappropriate applications are being made (e.g. applications without notice when notice should have been given). 

A new 2-page form is going to be introduced that will ask for additional information to be supplied about the urgent application, which will be handed to the Judge for them to decide if the application is urgent. This is intended to prevent inappropriate applications and was introduced successfully by HHJ McCahill QC in Bristol. 

Turnaround Times 

Issue is currently operating a 2-day turnaround. 

Correspondence and Orders are at 11 October 2018 at present. 

There have been some staffing changes which are impacting turnaround times, but new members of staff are joining the team and it is expected that the new CE-Filing system will reduce the turnaround time further. 

Disclosure Pilot 

James Morgan QC raised two concerns, both of which were discussed at the first or our Disclosure Breakfast Seminars that took place earlier that day :

1. The pilot is said to apply to new and existing claims from 1 January 2019, however what does this mean for CCMCs listed in the first weeks of January? The new rules require the completion of disclosure forms and there will not be time for these to be completed prior to the hearings from 1 January 2019.

a. Mrs Justice Carr and Mr Justice Birss confirmed that parties should begin completing the relevant disclosure review documents as soon as possible, ready to comply in January 2019, even though the pilot is not yet in force. There was some suggestion that words to that effect should be included on the notices being sent out by the courts, however the advice was to complete the forms regardless of whether any such wording was on the notices.

2. The pilot will only work if DJs are given proper time to read the disclosure review documents prior to any CCMC, therefore were there provisions being made for the DJs to have extra reading time?

a. DJ Ingram raised concerns that increased reading time would impact the number of effective CCMCs it would be possible for the courts to hear. 

b. It was agreed that DJs would probably need more time to review the DRDs.

DJ Ingram asked that details of any seminars on the new disclosure pilot be provided to her to pass on to any other DJs as some judges had not been able to attend earlier training, She duly attended our seminar in chambers on the 1st November. 

Sir Terence Etherton confirmed that the aim for the pilot is that the disclosure scheme will eventually roll-out beyond the BPC to apply to all civil litigation. 

Appeals Query

Marc Brown had become aware that the current procedural rules mean that an appeal can only be heard by a full-time High Court Judge, not deputies or those sitting as s9 Judges. This presents a difficulty on circuit due to the number of available full-time High Court Judges. He questioned whether this was a matter to be referred to the Rules Committee. 

This is apparently an issue that has been considered in depth and is a question for the heads of the division. It is believed that the position is as Marc described and that there is to be a review to take place of the procedure in the next 4 months. 

We hope you find this of use. 

James Morgan QC and Justin Luckman

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