Collins and others v Drumgold and others [2008] EWHC 584 (TCC), [2008] All ER (D) 27 (Apr)
Queen’s Bench Division, Technology and Construction Court
Coulson J
12 March 2008
The High Court has set out principles to be applied in considering whether or not an action should be transferred from the county court to the Technology and Construction Court (TCC).
The claimants did not appear and were not represented.
Lynne McCafferty (instructed by Fisher Jones Greenwood) for the second defendant.
The other defendants did not appear and were not represented.
The action was begun in January 2006. It concerned three properties owned by the claimants. The second defendant was the building contractor who built the houses. The principal complaint was that the foundations were inadequate and had consequently caused substantial damage. There were disputes as to the adequacy of the ground beams, issues of causation and the Defective Premises Act 1972. Limitation defences were also raised. A large number of pleadings were exchanged before, the second defendant issued an application in the TCC to transfer the case from the county court to the TCC under CPR 30.3(2) and para 2.1 of CPR Pt 60 PD. The claimants took the point that the application should first have been made to the county court in question.
Mr Justice Coulson:
“Generally, an application to transfer from a county court to the High Court would be made under CPR 30.3. An application to a specialist list (such as the TCC) would be made under CPR 30.5. In each case, the application to transfer was made to the receiving court (in the instant case the TCC), with notice to the relevant county court. Accordingly, the claimants’ solicitors were wrong to suggest that the application had first to be made to the county court pursuant to CPR 30.2(3). That rule was concerned solely with transfers from one county court to another.” (para 10)
The defendants had therefore followed the correct procedure by making the application on notice to the TCC.
His lordship turned to the relevant principles on transfer to the TCC. The matters which the court had to consider were set out in CPR 30.3(2), which provided:
“The matters to which the court must have regard include—(a) the financial value of the claim and the amount in dispute, if different; (b) whether it would be more convenient or fair for hearings (including the trial) to be held in some other court; (c) the availability of a judge specialising in the type of claim in question; (d) whether the facts, legal issues, remedies or procedures involved are simple or complex; (e) the importance of the outcome of the claim to the public in general”.
Transferrring existing county court action
His lordship referred to Lumbermens Mutual Casualty Co v Bovis Lend Lease Ltd [2004] EWHC 2197 (Comm), [2005] 2 All ER (Comm) 669. In considering the matters noted in CPR 30.3(2) on an application to transfer an existing county court action to the TCC, the TCC would tend to adopt the following approach:
(a) First, the court would consider whether the dispute arose out of or in connection with one of the types of claim which para 2.1 of the Pt 60 Practice Direction identified as being a claim suitable for the TCC. That paragraph provided:
“TCC claims 2.1 The following are examples of the types of claim which it may be appropriate to bring as TCC claims—(a) building or other construction disputes, including claims for the enforcement of the decisions of adjudicators under the Housing Grants, Construction and Regeneration Act 1996; (b) engineering disputes; (c) claims by and against engineers, architects, surveyors, accountants and other specialised advisers relating to the services they provide; (d) claims by and against local authorities relating to their statutory duties concerning the development of land or the construction of buildings; (e) claims relating to the design, supply and installation of computers, computer software and related network systems; (f) claims relating to the quality of goods sold or hired, and work done, materials supplied or services rendered; (g) claims between landlord and tenant for breach of a repairing covenant; (h) claims between neighbours, owners and occupiers of land in trespass, nuisance etc; (i) claims relating to the environment (for example, pollution cases); (j) claims arising out of fires; (k) claims involving taking of accounts where these are complicated; and (l) challenges to decisions of arbitrators in construction and engineering disputes including applications for permission to appeal and appeals.”
The TCC would consider that question broadly, on the basis that para 2.1 was a list of examples only. A dispute which was, or arose out of, or had a connection with, one of the types of claim identified there would therefore be considered as being appropriate (subject to the other factors) for possible transfer.
(b) If the dispute was, or arose out of, or had a connection with, one of those types of claim, the court would consider whether the financial value of that claim and/or its complexity meant that, in accordance with the overriding objective, the case should be transferred to the TCC. Financial considerations could be of some importance, but what would often be critical was the view that the court took of the complexity of the issues in the action itself. The more complex the dispute, the greater the benefit of transferring the action to the TCC.
(c) Whether questions of convenience to the parties had any effect on that decision. Questions of convenience could be important, but in the usual case, where the county court and the relevant TCC were not very far apart geographically, they might not be of any great significance. However, the court also had to bear in mind wider factors such as, for example, the fact that High Court cost levels would be higher than those in the county court.
His lordship applied those principles to the instant case and held that the transfer should be made to the TCC.
