The Lady Chief Justice (and former Commercial Court Judge), Lady Carr, chaired the Commercial Court’s latest academic/judicial/practitioner seminar in a hybrid event before an in-person audience in Lincoln’s Inn, with a wider audience watching online. This series of seminars brings together speakers from academia, the bench, and commercial practice to offer contrasting but complementary perspectives on topical issues in commercial law.

The subject of the latest seminar was Professional Negligence, and issues discussed included the status of the SAAMCO principle in the modern law, judicial techniques for controlling the scope of duty and liability, the potential for professionals to incur liabilities in tort to third party non-clients, and continuing breach and other complications in the field of limitation of actions for professional negligence claims.

The academic speaker was Professor Janet O’Sullivan, of Selwyn College, Cambridge, with Mrs Justice Dias appearing for the Commercial Court judiciary, and Leigh-Ann Mulcahy KC of Fountain Court Chambers as the practitioner speaker. Click on the links below to read the texts of their talks.

In a lecture to the London Solicitors Litigation Association, Mr Justice Foxton, the Judge In Charge Of The Commercial Court, considered the legal problems which can arise when relationships between litigants and the litigation funders who provide the finance for their claims break down. Among the issues which Mr Justice Foxton addressed were: who is responsible for paying the shortfall if the agreed budget and investment sum are exceeded; the treatment of costs of enforcing a judgment in favour of the funded litigant; how funders can protect their right to receive payment from judgment sums or settlement moneys; the relative rights of funder and funded to deal with the lawyers instructed to fight the case; and how to break the deadlock if funder and funded disagree about whether or at what level to settle the case,

Continuing his series of ‘…And The Law’ lectures, Mr Justice Foxton, the Judge In Charge Of The Commercial Court, turned his attention to ‘Rugby And The Law’ on a visit to Cardiff during which he also met Judges and staff of the local Circuit Commercial Court. In his lecture, hosted by Cardiff University’s School Of Law & Politics, Mr Justice Foxton considered a range of issues which have arisen at the intersection between law and rugby, including the tax status of payments to union players in the days of amateurism, employment law problems in the age of professionalism, the dividing line between an aggressive tackle and a criminal battery, judicial oversight of the games’ governing bodies, and the potential civil liability of on-field officials.

The lecture was followed by a Q&A session in which Mr Justice Foxton and His Honour Judge Keyser KC of the Cardiff Circuit Commercial Court answered questions from the audience of students and practitioners.

Read ‘Rugby And The Law’ here.

The Commercial Court Report for the legal year 2022-2023 has been published.

The Commercial Court Report is an annual publication containing statistics and information about the Commercial Court’s work during the previous year. It also incorporates Reports for the Admiralty Court and the London Circuit Commercial Court.

The statistics in the latest Report indicate significant increases in the number of new cases in all three Courts. In the Commercial Court, 885 claims were issued in 2022-2023, compared to 723 in 2021-2023. In the Admiralty Court, the increase was from 62 to 78 (excluding claims for personal injuries sustained on ships, which are invariably transferred to a more appropriate Court), and in the London Circuit Commercial Court, the increase was from 290 to 324. Among litigation “themes” during the year, the flow of business insurance interruption claims arising out of the Covid Pandemic continued, and there was a cluster of aviation insurance claims relating to aircraft leased to entities in Russia (insurance and reinsurance was the largest single category of new claims in the Commercial Court). The number of trials and hearings was slightly down, but the total number of judicial sitting days was similar to 2021-2022. The number of judicial days pre-reading for trials and hearings and writing reserved judgments increased. The number of applications dealt with on paper also increased, continuing a long-term trend.

Read the full Report here.

His Honour Judge Mark Pelling KC, who is the Judge In Charge Of The London Circuit Commercial Court and also sits in the Commercial Court, highlighted current trends and issues in crypto currency claims litigated in the Courts of England & Wales at a seminar in Dubai attended by an international audience of legal practitioners and other professionals.

Starting from the fact that most cases to date have involved fraudulent crypto currency schemes, HHJ Pelling discussed asset tracing, preservation, and seizure remedies which available to victims, and considered jurisdictional issues which arise when claims relating to transnational frauds are brought in English Courts.

HHJ Pelling’s full talk is here.

Mr Justice Foxton, Judge In Charge Of The Commercial Court and lifelong Fab Four fan, spoke to the Liverpool Business & Property Courts Forum on the topic of ‘The Beatles And The Law’ on a judicial visit to John, Paul, George, and Ringo’s home city. Among the subjects which he covered in a lecture which examined the highlights and the lowlights of the band's various encounters with legal systems on both sides of the Altantic were the bitter fallout over Allen Klein’s unhappy appointment as manager in the late 1960’s; George Harrison’s “My Sweet Lord”/’”He’s So Fine” litigation; and proceedings brought by Apple Corps against EMI (in a royalties dispute) and Apple Computer Inc (over trademark issues).

Read more about ‘The Beatles And The Law’ here.

The Judge In Charge Of The Commercial Court, Mr Justice Foxton, was the keynote speaker at the annual Arbitration & ADR Conference of the UK International Chamber Of Commerce. This year’s conference marked the ICC’s centenary, and Mr Justice Foxton took as his subject the conference’s theme of “Promoting The Rule Of Law”. Focusing in particular on how the Commercial Court, as the principal supervisory Court for arbitration in England & Wales, promotes the rule of law through its support for the arbitral process, he discussed the ways in which the Court secures compliance with arbitration agreements; the Court’s powers in relation to the formation of the tribunal and to ensure impartiality; and applications to the Court to challenge arbitral awards on grounds of serious procedural irregularity.

Mr Justice Foxton’s conference address is here.

Former Commercial Court Judge Dame Sue Carr has been appointed Chief Justice Of England & Wales. She is the first female holder of the post, which is the country’s senior judicial office. Dame Sue has adopted the style Lady Chief Justice, and has been granted the title Baroness Carr of Walton-on-the-Hill.

Dame Sue was a Commercial Judge from 2013 to 2020, when she was appointed a Lady Justice of Appeal. She is the sixth Commercial Judge to become Chief Justice, following the 1st Lord Russell of Killowen, Lord Goddard, Lord Bingham, Lord Phillips, and Lord Thomas.

Watch Dame Sue being sworn-in as Lady Chief Justice on youtube.

Speaking at the annual Crypto In Disputes Conference, His Honour Judge Mark Pelling KC, the Judge In Charge Of The London Circuit Commercial Court, gave an overview of significant developments over the last year in the law relating to fraud claims involving cryptocurrency. Among his topics, Judge Pelling KC discussed the Law Commission’s recent report on ‘Digital Assets’ and changes in the profile of cryptocurrency fraud claims. Judge Pelling KC also considered several jurisdictional issues which arise in relation to cryptocurrency fraud claims brought in the Courts of England & Wales, such as substituted service by e-mail and obtaining ‘Norwich Pharmacal’ orders for production of information against electronic services providers domiciled abroad.

Read the talk here.

Lord Burrows, Justice of the United Kingdom Supreme Court, chaired a seminar organised and hosted by the Commercial Court on the topic of unjust enrichment. The Admiralty Judge, Mr Justice Andrew Baker, Professor Birke Hacke of the University of Bonn, and Simon Salzedo KC, a commercial practitioner at Brick Court Chambers who also sits in the Commercial Court as a Deputy Judge, delivered papers to an invited group of Judges, academics, and senior practitioners, and the seminar was broadcast to a wider audience as a webinar. The speakers’ presentations were followed by questions and comments from the audience.

Click on the links to read ‘Talking To Themselves Or Talking To The Judges?’, Mr Justice Andrew Baker’s paper on Commercial Judges’ use of academic writings and commentary in unjust enrichment cases; and Simon Salzedo KC’s ‘Unjust Enrichment In The Commercial Court’, an account of the Court’s important contribution, through a succession of significant cases, to the development of this field of English law. (For subscribers to the Lloyd’s Maritime & Commercial Law Quarterly, a slightly revised version of Mr Justice Andrew Baker’s paper has been published in the 2023 volume here.

Mr Justice Foxton, the Judge In Charge Of The Commercial Court, visited the Manchester Circuit Commercial Court on 18th-19th May 2023. On 18th, he met young local barristers and solicitors, and delivered a talk on the topic of ‘James Bond & The Law’, which covered several of the many legal disputes which have arisen out of the 007 franchise, including arguments over who was responsible for the composition of the ‘James Bond Theme’ and the protracted wrangle over rights in the ‘Thunderball’ script and novelisation. The talk was organised by the Manchester Business & Property Courts Forum, which supports and promotes the Court’s work.

The following day, Mr Justice Foxton heard an application for an injunction in the Manchester Circuit Commercial Court.

Read ‘James Bond & The Law’ here.

The Commercial & Admiralty Court Report for the legal year 2021 - 2022 has been published.

The Report is an annual document containing detailed analysis of the numbers and types of cases dealt with by the Commercial Court, the Admiralty Court, and the London Circuit Commercial Court, together with other information about those Courts and developments in their practices and procedures.

The latest annual statistics for new claims show a continuation of a trend which began in 2020 - 2021, with a reduction in the number of new actions commenced in the Commercial Court, but an increase in numbers for the London Circuit Commercial Court. This reflects the success of judicial efforts to ensure that cases are begun in the most appropriate forum, with smaller commercial actions assigned to the London Circuit Commercial Court, rather than to the main Commercial Court.

The numbers of new cases in 2021 - 2022 were: 723 in the Commercial Court; 119 in the Admiralty Court; and 290 in the London Circuit Commercial Court. The total numbers of hearings were roughly comparable to the figures for 2020 -2021. There was a slight reduction in the number of cases which settled before trial.

New Commercial Judge (20th March 2023)

The Lord Chief Justice has nominated Mrs Jutice Dias to sit in the Commercial Court with effect from her appointment as a Judge of the King’s Bench Division on 20th March 2023.

Dame Julia Dias was called to the Bar in 1982 and was a commercial practitioner at 7 King’s Bench Walk. She was appointed Queen’s Counsel in 2008, and became a Deputy High Court Judge in 2018.

Commercial Court Judge Mrs Justice Cockerill was one of the interviewers involved “In A Conversation With A Reasonable Man”, which explored the life and legal career of Lord Leonard Hoffmann.

After beginning his career in his native South Africa, Lord Hoffmann transferred to the Bar of England & Wales in the 1960’s, was appointed a Judge of the Chancery Division in 1985, and, after a period in the Court of Appeal, sat as a Lord of Appeal in Ordinary in the judicial House of Lords from 1995 to 2009. He delivered influential judgments in a range of fields, perhaps most prominently in relation to the scope of damages liability in tort and the approach to the construction of commercial contracts. Lord Hoffmann reflected on these and other highlights in the interview, which is available to view here.

Sir Julian Flaux, Chancellor of the High Court (and Supervising Lord Justice of the Commercial Court) delivered a lecture on Practice Direction PD57AD which, following completion of the pilot period, now governs disclosure in the Commercial Court. Sir Julian highlighted the practical problems with disclosure in the digital age which lay behind the changes to the previous disclosure rules, and summarised the background to the formation of the Disclosure Working Group and its work in drafting the Disclosure Pilot, the forerunner to PD57AD. He went on to offer insights into how the judiciary expect the new Practice Direction to be implemented in practice. In particular, he emphasised the need for constructive co-operation and for the parties to Commercial Court litigation engage with each other at an early stage in each action to identify an approach to disclosure appropriate to the requirements of the case.

The text of Sir Julian’s lecture, which was sponsored jointly by Combar and the Chancery Bar Association, is here.

New Commercial Judge (11th January 2023)

Mr Justice Bright, whose appointment as a Judge of the King’s Bench Division of the High Court takes effect from 11th January 2023, has been nominated by the Lord Chief Justice to sit in the Commercial Court. He is the Commercial Court’s first new Judge in the reign of Charles III, making him the first Commercial Judge appointed to the King’s - rather than Queen’s - Bench Division since Colin Pearson (Later Lord Pearson) in 1951.

Sir Robert Graham Bright was called to the Bar by Gray’s Inn in 1987, and practised commercial law from 7 King’s Bench Walk. He was appointed Queen’s Counsel in 2006, and became a Recorder in 2018.

In Royal & Sun Alliance v Tughans, Mr Justice Foxton, the Judge In Charge Of The Commercial Court, highlighted a growing problem in the Commercial Court of party delay in addressing consequential matters after judgment. Emphasising that time is not reserved in Commercial Judges’ diaries for dealing with lengthy submissions on consequentials, Mr Justice Foxton highlighted that the increasingly common practice of parties addressing consequentials by exchange of written submissions both prolongs the process of finalising orders and all too often leaves the Judge confronted by a large volume of material. In Royal & Sun Alliance v Tughans itself, the 2 day hearing was in late July and the draft judgment was circulated in mid-September, but the parties’ written submissions on consequentials were not completed until 7 weeks later. The combined submissions exceeded 50 pages, and dealt with some points in more detail than in the skeleton arguments at the actual hearing.

Mr Justice Foxton stated that, in order to avoid such issues in the future, the Commercial Court will:

• Hand down judgments promptly after they are circulated to the parties in draft.

• Look to deal with consequential matters more frequently at oral hearings, which (except for significant trials) will be listed for an hour within 1 to 2 weeks of the judgment being handed down. Hearings will not necessarily be listed for the convenience of all counsel, if that would cause delay.

• Set a tight timetable - in the order of 1 to 2 weeks - where consequentials are dealt with by way of written submissions instead of at a hearing.

• Impose page limits for written submissions on consequentials, which will not normally be expected to exceed 15 pages.

Mr Justice Foxton’s judgment is here.

Commercial Judge Mrs Justice Moulder retired on 26th October 2022.

Dame Clare Moulder was admitted as a solicitor in 1984, and was a partner for nearly twenty-five years at Linklaters, where she specialised in banking, capital markets transactions, derivatives, and structured finance. She was appointed as a Recorder in 2010 and as a Deputy High Court Judge in 2013. Dame Clare became a Specialist Circuit Judge of the Manchester Circuit Commercial Court in 2015. When she was appointed a Judge of the Queen’s Bench Division of the High Court two years later and nominated to sit in the Commercial Court, she became the first Commercial Court Judge to have formerly practised as a solicitor rather than as a barrister.

During a day’s visit to the Newcastle Circuit Commercial Court, Mr Justice Foxton, who, as Judge In Charge Of The Commercial Court, also oversees the various Circuit Commercial Courts, presided over a Case & Costs Management Conference, then met Court users and staff at the Moot Hall Court and at the Newcastle Civil & Family Courts & Tribunal Centre. Mr Justice Foxton was the guest at an event organised by local Circuit Commercial Court Judge His Honour Judge Philip Kramer, and met students from the Universities of Durham, Newcastle, and Northumbria in a question and answer session. In the evening, he delivered a lecture on “Football & The Law”, discussing a variety of soccer-related cases, which you can read here. This lecture was the latest event organised by the Newcastle Business & Property Court Forum, which supports and promotes the conduct of commercial litigation in Newcastle.

Speaking to the London Common Law & Commericlal Bar Association on the subject of “Advocacy In The Commercial Court”, Commercial Judge Mrs Justice Cockerill provided insights into what the Commercial Court judiciary find helpful (and unhelpful) in written and oral advocacy before the Court. Drawing on her own experience and on the reflections of other Commercial Judges, both present and past, Cockerill J emphasised the importance of clarity, in circumstances where the Judge necessarily knows less about each case than the advocates involved, and of focussing on the key issues, so as not to overwhelm the Judge with peripheral points. She also provided some guidelines, illustrated by practical examples, on techniques for successful cross-examination in commercial litigation.

Mrs Justice Cockerill’s talk is here.

Upon the death of HM Queen Elizabeth II and the accession of HM King Charles III, the Queen’s Bench Division of the High Court becomes the King’s Bench Division, and the Judges of the Commercial Court, which is part of the Division, are now Justices of the King’s Bench.

The King’s - or Queen’s - Bench evolved from an administrative forum into a Court of law during the 12th-13th Centuries. Originally an institution entirely of the common law, it was given a statutory basis, and converted into a Division of the newly-created High Court of Justice, by the Judicature Acts of the 1870’s. The Division was the Queen’s Bench at the time of the creation of the Commercial Court in 1895, in the reign of Queen Victoria. It was the King’s Bench for half a century under Edward VII, George V, Edward VIII, and George VI, before reverting to Queen’s Bench on the late Queen’s accession in 1952. Of more than one hundred Judges who have been nominated to sit in the Commercial Court, two thirds were appointed during Elizabeth II’s seventy year reign.

Mr Justice Foxton has been selected as Judge In Charge Of The Commercial Court, in succession to Mrs Justice Cockerill, whose two year term ends in July. Mr Justice Foxton’s appointment, also for two years, takes effect from 1st August 2022.

Sir David Foxton was called to the Bar by Gray’s Inn in 1989 and practised commercial law at Essex Court Chambers. He was appointed Queen’s Counsel in 2006, became a Recorder in 1989, and has been a Judge of the Queen’s Bench Division since 2002.