ALLOCATION TO LEVEL OF JUDGE : “FAME” DOESN’T MATTER – THE TIME IT WILL TAKE TO OBTAIN A HEARING DOES
In Schumacher v Clarke [2019] EWHC 1031 (Ch) Chief Master Marsh held that the time it would take to obtain a hearing date is a factor in relation to which judge the matter would be allocated to. The Master also rejected an argument that the “fame” of one of the parties meant that the matter was more suitable for determination by a higher level of judge.
“… the notion that fame or celebrity of itself brings with it an entitlement to trial by the senior judiciary is not one that I recognise.”
THE CASE
The Master was making directions in relation to the remove of executors and directors. One issue that arose was whether the matter should be heard by a High Court Judge or a Master.
THE JUDGMENT ON ALLOCATION
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Turning to deal with the appropriate allocation of the judiciary, I acknowledge of course that this is a sensitive issue. I am deciding here whether I should deal with this trial, and there is clearly a need to be cautious about the reasonable expectation of the parties. I am faced, however, with a very clear difference of approach by the parties. The claimant wishes the trial to proceed before me. The defendants consider that a trial before a High Court Judge is appropriate. The question I have to determine can, I think, be deconstructed, because this is not a category A case; it is not a case of the greatest substance or great difficulty or of public importance. It is not a case which warrants only a trial by a High Court Judge. It is, of course, important to the parties and to the beneficiaries, but I am satisfied that it is not a category A case.
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Further to that, the determination about the level of judiciary who should try the case is not quite as simple as simply suggesting it should be a High Court Judge or a Master. In reality, the overwhelming likelihood if this case is referred by me for trial by a High Court Judge is that it will be heard by a Deputy High Court Judge. The jurisdiction that the court is called to exercise in this case is one which, in London, if not the preserve of the Chancery Masters, is exercised by the Chancery Masters in the vast majority of cases. It is an area in which the Chancery Masters have a considerable degree of experience. On the basis that the claim will proceed as a three day hearing without cross-examination, I can see no compelling reason why the claim should be referred to a High Court Judge for trial. The estate is not especially large. It is common for the Chancery Masters to deal with many estates and trusts which are of greater value than this estate, and it is not right to suggest that the case involves particularly complex issues.
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It is suggested that because Dame Zaha was a well-known public figure and the parties have high profiles, particularly in the art world, trial by a more senior judge than me is appropriate. I can see that may be a factor pointing in favour of trial by a more senior member of the judiciary in some cases. It is, however, important to focus on the issues the court will have to determine. And the notion that fame or celebrity of itself brings with it an entitlement to trial by the senior judiciary is not one that I recognise.
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This claim can be resolved in three days adequately. I do not agree with Miss Talbot-Rice’s submission that the ability of a Chancery Master to hear the claim sooner than a High Court Judge should be ignored as a factor in favour of the claim remaining at my level of the judiciary. Clearly it would not be a consideration for retaining a claim that is only suitable for trial by a High Court Judge. However, where, as here, the jurisdiction is one that is regularly applied by the Chancery Masters, the ability to hear the case about six months sooner than would be the case if the trial were to be heard by a High Court Judge is, to my mind, a powerful factor. The difference is a material one, the difference being between a trial in September 2019 and a trial between February and April 2020. This is a claim which cries out for early resolution, and it is of particular practical importance in view of the trading position of ZHL and the expectations of the beneficiaries. It is highly unsatisfactory that the staff of the firm are left in a period of uncertainty, and of course it is highly unsatisfactory that the claimant and defendants, as executors and trustees, are also left in a position of uncertainty.
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For the reasons I have given in this judgment the trial will take place before me in September 2019 without cross-examination. That, of course, does not rule out the possibility of a party applying for permission to cross-examine on a limited basis. That would not be an application I would encourage, but of course I can see that there is at least the possibility that issues arising from the witness statements might warrant cross-examination in a limited form.