The High Court should only hear cases if lawyers can show they meet an 'exceptionality test', the government suggested last week.

A Department for Constitutional Affairs consultation paper on focusing judicial resources said 'the present size of the bench [108 judges], coupled with the very wide variety of work undertaken by its members, is placing a strain on the ability of the bench to retain its distinctive characteristics'.



Pressure was said to be coming from an increase in sitting days in the Queen's Bench and Chancery Divisions, growth in both the Family Division's and Administrative Court's workload, a greater volume of criminal work undertaken by High Court judges, and more demand on them to sit in the criminal division of the Court of Appeal.


The paper said the government and senior judiciary agreed that 'it is not appropriate simply to allow the numbers on the High Court bench to increase'; this risked diminishing its quality and collegiate nature.


Instead, all civil and family disputes would begin at the lowest appropriate level unless lawyers argue successfully that they require the High Court's attention. Exceptional features would broadly be complexity, precedent-setting, or public interest, importance and significance. This would be supported by more detailed categorisation.


Such cases would include: the majority of judicial reviews; exceptionally high-profile criminal trials and family cases involving 'life or death' issues; and civil and family claims which, if successful, could well result in an award exceeding £5 million.


The Lord Chancellor Lord Falconer said the senior courts should only be used for those cases which truly warrant their special skills and expertise. 'Our key aim is to ensure that the right judges are hearing the right cases,' he said.