High Court judge transfers judicial review claim to Manchester against objections of public authority operating nationally

Giving a judicial determination on the papers in Fortt, R (On the Application Of) v Financial Services Compensation Scheme Ltd [2022] EWHC 152 (Admin), Mr Justice Fordham said a minded to transfer order ("MTTO") had been made on 10 December 2021.

The MTTO is a mechanism by which the Court invites and considers "the views of the parties" before any finalised decision to transfer the claim.

The background was that the claimant had filed the claim against the Financial Services Compensation Scheme (FSCS) in London. She had answered "no" to this question in Form N461: "Have you issued this claim in the region with which you have the closest connection?" She then gave these reasons:

The decision to issue the claim in London rather than Manchester is based upon the location of the FSCS, their legal representative and that the decision being challenged by this permission application affects complainants throughout England and Wales.

The MTTO was made by Martin Lee, Administrative Court Lawyer, in the exercise of powers delegated by the President of the Queen's Bench Division (CPR 54.1A). The Order recorded that Mr Lee was "minded to transfer this case to the Administrative Court in the Northern region for administration and determination at the Manchester Civil Justice Centre", giving the parties "liberty to indicate opposition to transfer by way of written submissions" within 7 days.

In his reasons, Mr Lee said this:

Although the claimant has ticked in section 4, N461 that the claim has been filed in a region other than that with which the claimant has the closest connection the only justification given is the location of the defendant (which is a national service) and the fact that it may affect others. Neither of those are reasons for the claim not to have been filed in Manchester to make best use of court resources and not over-burden the RCJ. The venue decision is best determined by the Judge.

The claimant, who lives in Blackpool, did not object to the transfer to Manchester. Her solicitors are based in Warrington, while her barrister is based in Manchester.

The defendant FSCS opposed the transfer, however, inviting the Court to retain the proceedings at the Administrative Court in London where the claim was originally commenced.

A letter from the defendant's solicitors suggested:

i) The claimant had confirmed in the Claim Form that the proceedings had deliberately been issued in the Royal Courts of Justice and that she considered that it should stay in London. Consideration should be given to the views of both parties before determining that the claim should be transferred.

ii) Transferring the proceedings to a location away from the defendant's offices in London would increase the defendant's costs of responding to the litigation and would adversely impact on its attempts to comply with its statutory obligations, including (by s.224ZA of the Financial Services and Markets Act 2000) to have regard to the need to ensure efficiency and effectiveness in the discharge of its functions, reflecting the fact that the defendant is funded by way of levy on active financial services firms.

iii) Since the defendant, its solicitors and counsel were based in London, it followed that all of the key personnel involved in this case for the defendant were in London. There would be a significant costs impact in having to travel to Manchester for a substantive hearing, including potentially having to source overnight accommodation for any hearing listed more than one day. The travel requirement could impact on availability dates for the defendant's counsel and solicitors. The overriding objective (dealing with cases justly and at proportionate cost) would best be furthered by the claim remaining in London for case-management and determination.

iv) Given that the Administrative Court (and Court of Appeal) in London has, in various cases referenced in the defendant's Summary Grounds of Resistance, been engaging with claims arising from similar subject matter – regarding SIPP Operators' obligations and potential liability to their clients, including when acting on an execution-only basis – there was a body of knowledge amongst many of the judges sitting at the RCJ which would be beneficial and ensure efficiency at the permission stage and any substantive hearing.

However, Mr Justice Fordham decided that the Administrative Court in Manchester (Northern Circuit) was the region with which this claim had the closest connection, “having regard to (a) the subject matter of the claim, (b) the region in which the claimant resides and (c) the region in which the defendant is based”.

He added: “In my judgment, having regard to all the circumstances, it is that region which provides the most appropriate location for the administration and determination of the case.”

The judge accepted certain features would support London as a venue: “London reflects ‘the region in which the Defendant … is based’; London reflects ‘the region in which the legal representative’ – solicitors and Counsel – of the Defendant are ‘based’; there is the ‘ease and cost of travel to a hearing’ in London rather than Manchester.”

But he added: “Having said that, the train from London to Manchester is a little over two hours. Moreover, Manchester reflects ‘the region in which the Claimant resides’; Manchester reflects ‘the region in which the legal representative’ – solicitors and Counsel – of the Claimant are ‘based’; and so there is the ‘ease and cost of travel to a hearing’ in Manchester rather than London.

“The Defendant's solicitors describe people travelling to Manchester and possibly needing to stay overnight. They also emphasise the statutory duty to have regard to the need to ensure efficiency and effectiveness in the discharge of its functions.”

The judge said he had “naturally” had regard to the overriding objective (dealing with cases justly and at proportionate cost), and to CPR 1.1(2)(b) (saving expense).

“But it is relevant that costs are incurred on both sides, by any necessary travel or accommodation. And there is this same symmetry as to the overall burden of costs (whether recoverable or irrecoverable). There is no reason why cost and travel should favour one party (a public authority defendant) over another (a private individual claimant). The fact is that the cost and travel considerations substantially cancel one another out.

“For, if the case is dealt with in London, the Claimant, her solicitors and Counsel would be making an equivalent journey the other way, with the equivalent needs. If the Defendant's team would need to stay overnight in Manchester for a hearing there, then the Claimant's team would need to stay overnight in London for a hearing there.”

Mr Justice Fordham noted Mr Lee’s suggestion that the defendant is providing ‘a national service’.

“There is nothing, in my judgment, about the ‘national’ nature or spread of a public authority's work which necessarily indicates that the RCJ in London is the appropriate venue. The assessment of the appropriate venue is based on identifying the appropriate "region": whether that is London or elsewhere. So, what links the Defendant to the RCJ is not that London is somehow a 'national' venue for 'national' public authorities, but that the RCJ is in the "region" in which the Defendant is located.”

The High Court judge also noted that the claim impugns a decision by the defendant on its interim approach to claims under s.27 of the 2000 Act, in circumstances where Adams v Options UK Personal Pensions LLP [2021] EWCA Civ 474 is pending before the Supreme Court. The claimant recognised that this issue "affects complainants throughout England and Wales".

Mr Justice Fordham said: “That is a point about 'national' spread, of an effect which (most directly) is on the Claimant in Blackpool. Insofar as the Claimant's ‘claim’ is linked to a ‘region’, it is her region. It is the Claimant's claim. The impact is primarily for her, where she is.”

On the issue of the RCJ’s ‘body of knowledge’, Mr Justice Fordham said the regional Administrative Court had a team of ticketed specialist judges – many of them with cross-over expertise in commercial and regulatory work – well able to deal with the issues which arise in judicial review cases involving the defendant.

“Added to that, there are – each term – visiting High Court Judges sitting in the regional Administrative Court, who are the very same personnel who would be allocated these cases in the RCJ. Having considered the nature of the claim, I can be confident that there will be suitable knowledge and experience, no injection of inefficiency, and no injection of delay.”

Mr Justice Fordham said that finally, as Mr Lee had pointed out, “the use of the regional Administrative Court – including in the present case – makes best use of court resources and serves not to over-burden the RCJ.

“The Administrative Court in Manchester has the capacity and resources, alongside its workload, to determine the claim in an appropriate time frame.”