High Court judge transfers application for judicial review to Manchester over objections by nationally operating public authority

A High Court judge has ordered that an application for judicial review made by a claimant in London be transferred to Manchester, closer to her home and despite objections from the defendant public authority.

Give a court ruling on the papers in Fortt, R (On Enforcement of) v Financial Services Compensation Scheme Ltd [2022] EWHC 152 (Admin), Judge Fordham said a transfer order (“MTTO”) was issued on December 10, 2021.

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

The background was that the plaintiff had filed a complaint against the Financial Services Compensation Scheme (FSCS) in London. She had answered “no” to this question in the N461 form: “Did you make this claim in the region with which you have the closest connection?” She then gave these reasons:

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The decision to issue the request in London rather than Manchester is based on the location of the FSCS, its legal representative and the fact that the decision challenged by this leave request affects claimants across England and the Wales.

The MTTO was established by Administrative Court Counsel Martin Lee in the exercise of authority delegated by the President of the Queen’s Bench Division (CPR 54.1A). The College recorded that Mr. Lee was “willing to transfer this matter to the Northern Region Administrative Court for administration and disposition at Manchester Civil Justice Centre”giving the parties “freedom to oppose the transfer in writing” within 7 days.

In his reasons, Mr. Lee said:

Although the plaintiff checked in section 4, N461 that the claim was filed in a region other than that to which the plaintiff 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. None of these reasons justifies that the application was not filed in Manchester in order to make the best use of judicial resources and not to overburden the RCJ. The decision of the venue is best determined by the judge.

The claimant, who lives in Blackpool, did not object to the transfer to Manchester. His lawyers are based in Warrington, while his solicitor is based in Manchester.

Defendant FSCS however objected to the transfer, asking the Court to continue the proceedings in the Administrative Court in London where the claim was originally brought.

A letter from the defendant’s attorneys suggested:

i) The claimant had confirmed in the claim form that the proceedings were deliberately brought before the Royal Courts of Justice and that she considered that she should remain in London. Consideration should be given to the views of both parties before deciding 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 litigation and adversely impact its attempts to comply with its legal obligations, including (per section 224ZA Financial Services and Markets Act 2000) to take account of the need to ensure efficiency and effectiveness in carrying out its functions, reflecting the fact that the defendant is financed through a business tax active financial services.

iii) As the Respondent, its solicitors and solicitors were based in London, it followed that all key personnel involved in this matter for the Respondent were located in London. Having to travel to Manchester for a substantive hearing would have a significant impact on costs, including the ability to secure overnight accommodation for any hearings listed over more than one day. The requirement to travel could affect the availability dates of lawyers and defendant’s attorneys. The overriding objective (to do business fairly and at a proportionate cost) would be better served if demand remained in London for business management and determination.

iv) Given that the Administrative Court (and Court of Appeal) in London has, in various cases referenced in the Respondent’s Summary of Grounds of Resistance, brought claims arising out of a similar subject – relating to the obligations of SIPP Operators and potential liability to their clients, including when acting solely on the basis of execution – there was a body of knowledge among many judges serving on the RCJ which would be beneficial and ensure efficiency at the stage of authorization and any substantive hearing.

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

He added: “In my opinion, taking into account all the circumstances, it is this region which offers the most suitable place for the administration and decision of the matter.”

The judge agreed that certain characteristics would support London as a place: “London reflects ‘the region in which the defendant…is based’; London reflects “the region in which the legal representative” – solicitors and barristers – of the defendant are “based”; there is the “ease and cost of getting to a hearing” in London rather than Manchester.

But he added: “That said, the train from London to Manchester takes just over two hours. Additionally, Manchester reflects “the region in which the applicant resides”; Manchester reflects “the region in which the legal representative” – solicitors and advisers – of the plaintiff are “based”; and so there is “the ease and cost of traveling to a hearing” in Manchester rather than London.

“Lawyers for the defendant describe people traveling to Manchester and possibly needing to stay overnight. They also point to the legal duty to consider the need for efficiency and effectiveness in carrying out his duties.”

The judge said he “naturally” took into account the overriding objective (to deal with cases fairly and at a proportionate cost) and CPR 1.1(2)(b) (to save expense).

“But it is relevant that the costs are incurred on both sides, by any necessary travel or accommodation. And there is this same symmetry about the overall burden of costs (whether recoverable or sunk). There is no reason for cost and travel to favor one party (a public authority respondent) to the detriment of another (an individual claimant). The thing is, cost and travel considerations cancel each other out significantly.

“Because if the matter is dealt with in London, the Claimant, her solicitors and her lawyer would make an equivalent journey in the other direction, with equivalent needs. If the defendant’s team were to spend the night in Manchester for a hearing there, the claimant’s team would have to spend the night in London for a hearing there.

Judge Fordham noted Mr Lee’s suggestion that the defendant is providing “a national service”.

“There is nothing, in my view, in the ‘national’ nature or extent of the work of a public authority that 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 in London or elsewhere. Thus, what binds the defendant to the RCJ is not that London is somehow a “national” place for the “national” public authorities, but that the RCJ is located in the “region” in which the defendant is located.

The High Court judge also noted that the claim challenges a decision by the defendant on its interim approach to claims under section 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 acknowledged that this issue “affects claimants across England and Wales”.

Judge Fordham said: ‘This is a point on the ‘national’ spread of an effect which (most directly) is on the claimant in Blackpool. Insofar as the applicant’s “request” relates to a “region”, it is her region. This is the claimant’s request. The impact is mainly for her, where she is.

On the issue of the RCJ’s “body of knowledge”, Judge Fordham said the Regional Administrative Court had a team of labeled specialist judges – many of whom had cross-expertise in commercial and regulatory work – well able to deal with issues that arise in judicial review cases involving the defendant.

“In addition to this, there are – each term – visiting High Court judges sitting in the Regional Administrative Court, who are exactly the same staff who would be assigned to these cases at the RCJ. After considering the nature of the claim, I can be sure that there will be appropriate knowledge and experience, no injection of inefficiency and no injection of delay.

Judge Fordham said that ultimately, as Mr. Lee had pointed out, “recourse to the regional administrative tribunal – including in the present case – makes it possible to make the best use of judicial resources and not to overload the RCJ.

“Manchester Administrative Court has the capacity and resources, alongside its caseload, to adjudicate the claim in a timely manner.”