When the Commercial Court was established in 1895, High Court procedure was governed by the Rules of the Supreme Court. Reviewing and amending these Rules was the responsibility of a Rules Committee headed by senior Judges. Lord Russell of Killowen, who was a strong supporter of demands from the business world and parts of the legal professions for a specialist Commercial Court, had asked the Rules Committee to consider amendments for the creation of such a Court soon after he became Lord Chief Justice in 1894. But not all Judges were enthusiastic about the proposal that commercial cases should be heard by specialist Judges, and the Committee claimed that drafting appropriate Rules would be extremely difficult. Some commentators said that changing the Rules was not enough in any event, and that a Commercial Court could only be established by legislation.
Russell and the other judicial supporters of the Commercial Court were not put off. They decided simply to bypass the Committee altogether, and to make do without any changes to the Rules. The new Commercial Court was therefore introduced not by statute or Rules of Court, but in the form of a Notice issued by the Judges of the Queen’s Bench Division in February 1895. The Notice as to Commercial Causes announced the creation of a special Commercial List for cases arising from the transactions of merchants and traders. Litigants could apply to transfer suitable cases to this List, and all cases in the List would be dealt with by Sir James Mathew, who was the most experienced commercial lawyer among the Queen’s Bench Judges. The Notice also gave some brief indications of how Mathew proposed to apply the Rules of the Supreme Court in commercial cases in order to minimise delay and expense. The Notice did not change any of the Rules: the Queen’s Bench Judges did not have power to do that. In fact, the Notice had practically no legal standing, and although Judges, lawyers, litigants and the press immediately started referring to “the Commercial Court”, that was technically inaccurate: the Notice did not create any new institution, it simply explained that a particular type of case would be allocated to a particular Judge when work was divided up between the Queen’s Bench Judges.
In spite of its questionable status however, the Notice, supplemented from time to time by other Notices and Practice Directions, was the basis of the Commercial Court’s existence for nearly seventy years. It remained in force until 1964, when a new Rule of Court was introduced for “Commercial Actions”. The famous RSC Order 72 followed the Notice on Commercial Causes in referring to a “Commercial List”. The popular name “Commercial Court” did not receive official approval until 1970.
Commercial Court
There shall be constituted, as part of the Queen's Bench Division of the High Court, a Commercial Court…
The Administration of Justice Act 1970, Section 3(1)
Order 72 had a shorter lifespan than the Notice on Commercial Causes. In 1999, the Rules of the Supreme Court were replaced by a new procedural code, the Civil Procedure Rules. The Commercial Court has its own Rule, Part 58, and an associated Practice Direction, PD58. These change some of the provisions which normally apply under the Civil Procedure Rules: for example, the timetables for serving statements of case are different, to reflect the fact that Commercial Court cases are often larger and more complicated than other cases, and to allow for challenges to the jurisdiction, which are more common in the Commercial Court than in most other Courts. The Civil Procedure Rules retain important features which have been part of Commercial Court practice since 1895, in particular case management by the Commercial Judges.
The Civil Procedure Rules make special provision for arbitration claims in Part 62 and PD 62. These are particularly significant for the Commercial Court, which is the main supervisory Court for commercial arbitrations with a seat in England & Wales.
Part 57A, which makes special procedural provisions for cases in the Business & Property Courts, applies in the Commercial Court. Practice Directions under Part 57A set out specific rules for disclosure and for witness statements in the Commercial Court.
The Commercial Court sometimes participates in Pilot Schemes established under the Civil Procedure Rules. The Shorter & Flexible Trials Schemes are available to litigants in the Commercial Court, although they are not compulsory.