Lord Falconer has dropped a hint about the future of specialist courts.

But would such entities work as well as the domestic violence courts already in place? Mark Smulian reports

In the late 19th century, a public scandal erupted when a commercial case was tried at inordinate length by a judge who made it painfully obvious that he knew nothing of commercial law.

The result was the formation of the Commercial Court in 1895.

Along with the admiralty, and technology and construction courts, it provides a service for cases that arise in areas of law where strong specialist knowledge is needed.

So should there be more such courts?

Last month, saw a report from the Department for Constitutional Affairs (DCA), which called for the extension of specialist domestic violence courts beyond the five being piloted, while there is a persistent lobby for a specialist environmental court (see [2004] Gazette, 25 March, 4).

Would these be helpful in bring specialist expertise to bear, or would they risk the creation of court backwaters, with both lawyers and judges viewing them as outside the professional mainstream?

Domestic violence courts have been set up at Cardiff, Derby, Leeds, Wolverhampton and west London, with trained personnel and child-friendly procedures.

The DCA's evaluation said they showed high user satisfaction, benefited victims, saved money and should be used more widely.

In a speech last month, the Lord Chancellor, Lord Falconer, said he would 'look further at the development of specialist courts', and at 'integrated courts, on the lines of successful US models, which see a single judge hearing both the civil and the criminal aspects of a case'.

Jane McCulloch, who chairs the domestic abuse panel of the Solicitors Family Law Association, says: 'It is important to make it clear that the five pilots are only criminal courts.

There is some misappre-hension that they also combine the family jurisdiction, but they do not.

'I understand there is to be a combined family and criminal court piloted in Croydon this summer and we hope to be involved with its design.'

Ms McCulloch, a partner at Barnsley firm Raleys, says that while the evaluation of the pilots seems 'quite positive', the arguments for domestic violence courts are by no means clear-cut.

'It does ghettoise the issue, but it offers extra advocacy and support for victims, so it may be that the pros outweigh the cons,' she says.

Dealing with domestic violence in courts that are solely criminal, on the other hand, may lead to a public perception that serious criminal allegations are not to be handled in a 'proper' court, Ms McCulloch fears.

She also sees a difficulty in any combined court having to operate on two standards of proof for civil and criminal aspects, though she says this would remove 'the common problem of the left hand not knowing what the right is doing when a perpetrator is going through both the criminal and family systems at once'.

Despite the evaluation's finding that the pilot courts have saved money, Ms McCulloch predicts that the costs of setting up courts would inevitably mean that they were located only in major cities.

'That would put people who have children in a difficult position if they had to travel long distances to court,' she says.

Rodney Warren, director of the Criminal Law Solicitors Association, also sees domestic violence courts as a matter of fine judgement rather than an overwhelming case for or against.

He says: 'Inescapably, we are living in a world where there is greater specialism within the law, which suggests that a new specialist court for the resolution of disputes would have much to commend it.

'But some areas of the law cannot be confined to specialist courts as they do not fall easily into one type of content.

'A domestic violence court might not be a better place to deal with somebody for whom domestic violence is only one part of their criminal conduct.'

Domestic violence offenders, he points out, often also commit other acts of violence away from their homes and, 'it might not be desirable to have them dealt with by different courts'.

Mr Warren recognises that specialist courts may offer witnesses greater confidence, 'but the defendant may feel the offence is being treated less seriously than if it were in a full-blown criminal court'.

He acknowledges that support for victims and witnesses is desirable but a different issue from whether the court should necessarily be separated from the main criminal system.

The argument over whether there should be specialist environmental courts relates not to the facilities offered to participants but to the standard of judges.

Owen Lomas, head of global environmental law services at City firm Allen & Overy, says: 'On balance, I would favour an environ-mental court, but it is a fine balance because there is an argument that if you separate out environmental law, it gets sidelined and is not given enough prominence.'

The argument is similar, he says, to calls for a ministry of environmental protection in the government.

This might provide a focus for the issue but it could also lead other departments to think that the environment was someone else's business.

'The problem in environmental matters is that they go to a plethora of courts and tribunals in England and Wales which do not build up expertise,' says Mr Lomas.

'It is a technical area and we get quirky decisions and lax penalties because judges do not understand the nature or importance of what they are dealing with.'

Judicial ignorance of environ-mental matters means that the penalties imposed for environmental protection offences 'bear no comparison to those for antitrust matters', says Mr Lomas.

While both kinds of offences can have a beneficial effect on an offending business's bottom-line if undetected, in environmental protection cases 'no one pays much attention to how much businesses might have saved through breaching the law', he says.

However, Mr Lomas says the benefits of marshalling expertise have to be balanced against the possibility that the environmental court 'would be seen as lightweight and a backwater which no one of quality would want to go into'.

Ed Keeble, head of the environmental unit at City firm Slaughter and May, supports the concept because 'anything that leads to a concentration of know-how in a subject among judges who keep seeing stuff about remediation and groundwater, for example, would be good'.

The venerable Commercial Court might serve as an example for how these new courts could be organised.

Tony Guise, the immediate past president of the London Solicitors Litigation Association, says that while each area of law would need its own way of working, 'to some extent the Commercial Court would serve as a good model in terms of hands-on management, and so would its procedures.

It is certainly not a backwater'.

However, it is embroiled in a dispute with the government over its premises, which throws some light on the costs of setting up new types of courts, all of which would, no doubt, want a building that they viewed as befitting.

The Commercial Court is lodged in St Dunstans Court, near the Royal Courts of Justice in central London.

Anyone who set foot inside would become convinced of the case for a new building, Mr Guise says.

'The facilities are appalling, and "tatty" is an understatement,' he says.

'London is losing market share as a centre of dispute resolution and arbitration to places like Paris, Dublin and New York, where there are decent facilities where business people can sort out problems.'

He says the delayed refurbishment project has now been put to the Treasury on a cost-neutral basis, to be achieved by selling the present building and moving the Central London County Court from two buildings into one.

Mr Guise hopes for 'good news' this month.

When he welcomed the research on domestic violence courts, Lord Falconer stressed it was important that 'justice is seen to be done'.

Whether separate courts make justice more or less visible will be an important factor in the debate on whether more specialist courts should be created.

Mark Smulian is a freelance journalist