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Tuesday, 17 May 2011

What cases should the Supreme Court hear?

Published in Halsbury's Law Exchange here

During research for my previous post on the Supreme Court, the question arose as to what sort of cases the court should hear. Some authors have been of the view that the court should fashion itself as a constitutional court, rather than continue as a general appeal court. Most notably, Baroness Hale is reported as saying that the court should eschew “big money shipping cases” which she argues are “important only to the parties and their insurers" (quoted here @ p26). A change in that direction would mirror the experience of the Canadian Supreme Court, which over the past 25 years has gravitated towards public law cases (see Hazell, Robert, The Continuing Dynamism of Constitutional Reform (January 2007), Parliamentary Affairs, Vol. 60, Issue 1, pp. 3-25, 2007 @ p17).

As noted in my previous post, there has been a substantial increase in constitutional and administrative litigation in the past half century, particularly since the coming into force of the Human Rights Act 1998. The more cynical attribute this trend to an overregulated society, an economic climate in which the state is seen as one of the few defendants worth suing (the yet more cynical dispute the validity of this assumption, with reference to the national debt), and the opportunities presented by the 1998 Act (“cynical” probably not being sufficient to describe some of the detractors thereof).

With the greatest respect to Baroness Hale, however, I would maintain that the Supreme Court should remain a general appeal court.

It should be uncontroversial to observe that Britain can only afford its vast state apparatus and world-leading standards of human rights because of the money generated by the City. That money is generated because international businessmen and women choose to do business here. They do so because of two primary reasons: first, the commercial expertise; and secondly, the regulatory regime.

Central to the second of those reasons is the dispute resolution mechanism, which in London is composed of the well-known arbitral tribunals as well as the court system. No one would choose to do business in a country which failed to adhere to the rule of law, or otherwise had an untrustworthy judicial system (unless I suppose one was tempted by the availability of minerals or other raw materials, which is not the case in London).

At the apex of the London dispute resolution and judicial tier sits the Supreme Court, which has a significant role as the ultimate guarantor of the correctness of the legal process, even if the guarantee is only rarely called upon.

In an important recent analysis Carnwarth LJ estimated that legal services amounted to £3b in foreign earnings in 2007, and pointed to the increasing number of international dispute resolution centres.* But a greater (if less easily quantified) sum would be earned on transactions which take place in London because of the regulatory framework as already mentioned.

It would also be incorrect to assume (nb - I am not imputing this assumption to Baroness Hale) that all "big money" commercial cases are irrelevant to the average consumer. The bank charges case (Office of Fair Trading v Abbey National plc and others [2010] 1 All ER 667) is a good example, and one can imagine test cases along similar lines in many other areas of consumer law. Or one thinks of Equitable Life Assurance Society v Hyman [2000] 3 All ER 961 - a classic Chancery Division dispute, but one upon which many thousands of ordinary people's savings turned. I do not see any compelling reason why the Supreme Court should not continue to hear such cases. In fact I would maintain the opposite: public confidence in the outcome of important cases will be much higher if they are resolved by thorough examination from the highest court in the land.

Accordingly, rather than seeking to confine itself to public law cases (either formally by a statutory restriction on its jurisdiction or informally by the exercise of its discretion to grant permission to appeal), the Supreme Court should continue as a general court of appeal. Or, to invoke one of the Court of Appeal's stock phrases, their lordships should dine a la carte rather than from a set menu. In considering whether to grant permission to appeal, the court should take a broad - that is to say, commercially aware - view of what constitutes public importance.

* As an aside, I would note that the importance of the Admiralty and Commercial Court renders it something of an embarrassment to the nation that for so many years it has had to be housed in such inadequate facilities as St Dunstan's House on Fetter Lane. A new building is under construction, which sensibly will also house the Technology and Construction Court (also lumped in St Dunstan's at present) and the Chancery Division (presently housed in the not much superior Thomas More Building within the Royal Courts of Justice on the Strand). This new building, Rolls House, will have much superior facilities, although it will still lack any character. During the Admiralty Court's ceremony marking the 200th anniversary of Trafalgar, it was noted that if the French had won then at least the anniversary event would be taking place in a decent venue. I wonder if it is too much to hope an edifice of suitable gravitas might be built in time for the 300th anniversary. At any rate, the absence of suitable premises for the Commercial Court was another reason why it was folly to be spending £30m on the Supreme Court building first, though obviously that argument along with the money has long been spent.

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