The Business and Property Courts in a brave new world, Rawdon Crozier reports

Chancery Bar Association, COMBAR and TECBAR

  • Moderator The Rt Hon Sir Geoffrey Vos, The Chancellor of the High Court
  • Speakers Mark Cawson QC, Chair of Northern Chancery Bar Association, Three Stone; Alexander Nissen QC, Chair of TECBAR, Keating Chambers; Andrew Spink QC, Chair of COMBAR, Outer Temple Chambers; Rosemary Martin, Chair of GC100 and Group General Counsel of Vodafone Plc

The Business and Property Court was launched in July to provide not only a new name for England and Wales’ international dispute resolution jurisdictions, but to act as a single umbrella for business specialist courts across England and Wales. From the Chancellor, Sir Geoffrey Vos’s resolutely upbeat opening, which was full enough for each of the subsequent speakers to start by thanking him for having already said much of what they had intended to say, it was evident ‘Brave New World’ of the session’s title was to be taken at face value and not as a sly reference to Huxley’s dystopian novel.

He started by outlining challenges the new court would have to meet: the need to be ‘at the top of its game’ in the context of Brexit and competition from English language courts in France, Germany, the Netherlands and, soon, Belgium and the need to adapt to meet the needs of businesses driven by technological changes, where the use of AI and digitally created smart contracts was becoming commonplace. To reinforce the point, the Chancellor said that ‘3 trillion’ smart contracts will have been entered into, I think, across the globe by the end of this year (simply trying to process the ‘3 trillion’ figure briefly interrupted my note-taking).

Nonetheless, the Chancellor believed the common law had the necessary flexibility to meet the huge challenges these new technologies posed. Big figures were not confined to the Chancellor’s introduction. Rosemary Martin, who stood out among a crop of high quality speakers, had responsibility at Vodafone for a legal budget of £150m per annum, while collectively the annual legal budgets of the FTSE 100 companies, whose general counsel the GC100 represents, was £45bn. She praised the quality of the judgments of the English commercial courts, the certainty around the process and the integrity of the system but warned that ‘less wonderful’ were speed, efficiency and cost. The GC100 had been impressed by Lord Dyson’s response to its expressed concerns, the early fruits of which were the Etherton working party and the forthcoming changes to the disclosure rules. These were then outlined by Andrew Spink QC, who may have regarded himself as having drawn the short straw in having to deal with such a ‘nuts and bolts’ topic but made an extremely engaging job of it.

Alexander Nissen QC welcomed the structure of the Business and Property Court, which enabled the continuation of individual specialist approaches within the structure of the single court. He spoke about the Shorter and Flexible Trial Schemes, judge-led ADR and the growth of early neutral evaluation. I wish space allowed me to do justice to his contribution and to that of Mark Cawson QC who gave the Circuits’ perspective on the new Business and Property Court. 

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Rawdon Crozier

Rawdon Crozier is a barrister at KBG Chambers, Plymouth, specialising in property law. He is a member of the Counsel editorial board, writes for several legal journals and also writes poetry.