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Speech by the Lord Chief Justice on the 125th anniversary of the Commercial Court

Sir David [Wootton, Lord Mayor Locum Tenens], Minister, My Lords, Aldermen, Sheriffs, Chief Commoner, Ladies and Gentlemen.

I have been reminded that I am the 17th Lord Chief Justice since the Commercial Court began in 1895; which means that, somehow, 80 of my predecessors managed without it. The causes of its foundation, whose 125th anniversary we gather this evening to celebrate suggest to me that some might have benefitted had it come along a little earlier.

The business community, including the City of London, was vocal throughout the 19th century in support of a court presided over by judges who understood commerce, who could confidently decide specialist disputes and do so in a way which enhanced the commercial standing of London. The best-known example of the reason for such calls is the case of Rose v Bank of Australasia where the first instance judgment took an inordinate amount of time to emerge and when it did, it failed to deal adequately with the claims in issue. There was a perception that English courts were not meeting the needs of business in the same way as they did in the 18th century.

That golden age of the flowering of English common law to meet developing business needs occurred during the time of one of the truly great Lord Chief Justices, Lord Mansfield. He was a legal innovator who, incidentally, scandalised his contemporaries by giving extempore judgments. He sat in the Guildhall to hear commercial cases amongst the commercial men of the day. He appreciated the needs and requirements of the mercantile community. Mrs Justice Cockerill, the judge in charge of the Commercial Court confirms that his judgments from the Guildhall years continue to be cited today, including in recent Supreme Court judgments.

The second of my predecessors who deserves special mention this evening on this occasion and in this company is Lord Russell of Killowen, the Chief Justice who brought about the foundation of the Commercial Court. Lord Russell was himself one of the first judges to sit in the Commercial List. This is a temptation which I have so far resisted, but Sara Cockerill is becoming increasingly persuasive.

It is particularly fitting that this anniversary comes to be marked during the incumbency as Lord Mayor of one of Lord Russell’s direct descendants – William Russell.

And it is also particularly fitting that the distinguished firm, which was your own professional home Sir David, has been a regular user of the Commercial Court since its foundation.

The links between the Court and the City are long and highly valued by the judiciary. We remain grateful to the City for its own appreciation of the link and for its generous marking of this anniversary with this dinner. Beyond that, may I take this opportunity to thank the Lord Mayor and City Corporation not only for the support given for the original plans for the 125th Anniversary celebrations and to the “Covid affected” programme which ultimately went ahead but more widely for the support given to the judiciary, the administration of justice and the rule of law.

The combination of the anniversary and the reckoning point of COVID-19 makes this a particularly suitable time to take stock of what has changed in those 125 years. Of course, in technological terms 1895 was a rather different world.

In those early years even the Court’s substantial cases were conducted in a few days and many of them concerned purely domestic disputes. How much has changed! Today the Court’s cases not infrequently last for months, and only one quarter of them involve two parties based in this country.

Today we survey a Commercial Court whereby default bundles are virtual rather than real. We see a court where for over 30 years trials have been occurring with the evidence of witnesses from abroad being taken by video-link. In the last eighteen months, the court has continued its business without interruption, accelerating its use of technology and conducting trials with participants joining from around the world. There will be no going back to the working ways of early 2020.

The Court began with innovation and innovators and the last year has demonstrated clearly that it continues in that tradition. Since its beginning the court has been pioneering techniques of judicial case management which have then been used as the standard for reforms elsewhere – both here and internationally. It does not rest on its laurels. Recent years have seen the Court pilot changes in a number of areas. It remains vigilant in formulating best practice. It constantly looks to its users to ensure that it is providing the service which commercial parties need – working with them on proposals for such new practices and ensuring that its user group reflects the full range of London’s diverse legal offering.

It is also working hard to ensure that the profession which uses it and which provides the future judges of the Court is a more representative one. The international nature of commercial litigation makes this all the more important. The Court works with a number of organisations to welcome students from diverse backgrounds as marshals and for mock trial and Q&A events. It is extending that work into the Circuit Commercial Courts around the country. It is working closely with the Judicial Appointments Commission and the Law Society to encourage more solicitors to think about applying to the Bench. The commercial talent pool is wider than the Bar – and must be encouraged to extend further.

At the 100th Anniversary my predecessor said:

“What then gives the Commercial Court [its] national and international pre-eminence? First, and obviously its Judiciary … Their ability to apply legal principles to factual situations in a way which not only delivers justice in the instant case, but also ensures consistency and clarity of commercial law is in my view unparalleled in the world today.”

The same is true today. Highlighting this, the revised Anniversary programme featured a series of seminars with the Court’s judges engaging with key issues in commercial law, with the papers given published in the Journal of Business Law. A seminar on shipping law will take place next week.

This is all done in the context of an exceptionally busy workload. Mr Justice Mathew once weighed off 32 summonses in one day. But for the Court’s current judges the pace of work is every bit as fierce, if a little different. There are regularly over 15 trials a year which last for more than 3 weeks. This sits on top of over 1000 oral applications each year, many of them lasting a day or more and an ever-increasing number – last year over 5000 – paper applications. I am content that the judges are giving even JC Mathew a run for his money!

The international aspect of the Commercial Court’s work, and the press of business, illuminates the continuing pre-eminence of London as a dispute resolution centre; it speaks of the high quality of professional services, lawyers and all others, to service commercial litigation and arbitration and, if I may say so, it reflects the very high international standing of our judiciary. The Commercial Court, at the pinnacle of international dispute resolution in England, flourishes in the face of growing and welcome overseas competition. It does so, in part, because of the reputation of English law and the predictability, flexibility and nimble footedness of the common law.

Our Commercial Court is a vital part of the enormous contribution that English Law in the international commercial world contributes to our prosperity. Long may it continue to flourish and adapt to changing times and circumstances. And, my Lord Mayor, long may the City of London continue to support and strengthen the position of London as one of the pre-eminent centres for commercial law and dispute resolution in the world.

Lord Burnett of Maldon
The Lord Chief Justice

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