Changes at the TCC

There are a number of changes afoot in the way in which disputes are resolved in England and Wales. Readers will be familiar with the changes being made to the Housing Grants Act, including the extension of adjudication to all construction contracts, and not just those evidenced in writing. The Review of Civil Litigation Costs, undertaken by Lord Justice Jackson, was published on 14 January 2010. This report proposed a number of changes on the way the courts and litigation process might work. Closer to home, on Friday 1 October 2010, The Technology & Construction Court (“TCC”) issued a revised Guide. We commence this year’s Review with a look at some of these changes.

The TCC Revised Court Guide

The key points to emerge from the revised Guide are as follows:

Email, electronic working

As a result of a trial running since 20 July 2009, parties have been able to issue all TCC claims in the TCC Registry in London electronically. Further, all proceedings, whether the claims were commenced electronically or by a paper claim form issued after that date, can be continued by taking advantage of the electronic issuing and filing process (known as “eworking” at the TCC). It is the clear intent of the TCC to continue with this and extend eworking to courts outside London.

E-disclosure
In the wake of today’s technological advances, this is not an unsurprising development. It is mirrored by the Practice Direction 31B which also come into effect on 1 October 2010, which deals with electronic disclosure. In short, this has widened the scope of what might be considered a document. Paragraph 5 of the new Practice Direction sets out a series of definitions for terms contained in the new Practice Direction itself, one of which is “Electronic Document”, which is given the broad definition of “any document held in electronic form.” This will include not only “email and other electronic communication” such as “word-processed documents and databases” but also “text messages and voicemail.” E-disclosure means that parties to a dispute may have to give particular thought to the storage, retrieval and production of a wide variety of perhaps surprising documents and data. For example:

(i) Do you have a policy for deleting email and other electronic documentation that might need to be temporarily suspended?

(ii) Do you have a system in place for preserving documents and data or keeping text or other sms messages?

(iii) Do you know where all your PCs, laptops and mobile phones are? Who has control of them?

(iv) Are back-ups easily available? Can you recover information that has been deleted in the normal course of business?

This is just the type of information you may need to record in a disclosure statement outlining the steps you have taken to search for relevant documents.

Costs

The TCC Guide makes it clear that judges are going to keep a closer eye on costs. If the judge in charge of a case considers that any particular aspect has unnecessarily increased costs, such as what are termed “prolix” (i.e. Unnecessarily overlong) pleadings or witness statements, then they may make a costs order disallowing costs or ordering costs to be paid, either on the basis of a summary assessment, or by giving a direction to the costs judge as to what costs should be disallowed or paid on a detailed assessment. Equally, if at any stage the judge considers that the way in which the case has been pleaded is likely to lead or has led to inefficiency in the conduct of the proceedings or to unnecessary time or costs being spent, he or she may order that the party should re-plead the whole or part of the case and may make an appropriate costs order disallowing costs or ordering costs to be paid.

The TCC has been at the forefront of the judicial drive to cut costs. It seems clear that the various litigation arising out of the construction of the new Wembley Stadium has led to judicial thinking. For example in the case of Brookfield Construction (UK) Ltd v Mott MacDonald Ltd,1 Mr Justice Coulson was also concerned about the level of future costs.

At the Case Management Conference, he directed, and the parties’ agreed, that costs would only be recoverable for the proposed sub-trial beyond the estimates given in December 2009, if the party in question was able to demonstrate an unforeseen increase which, in all the circumstances, the Judge concluded was reasonable. In this way the Court had achieved a form of costs control which was reasonable, proportionate and in accordance with the overriding objective.

Alternative Dispute Resolution (ADR)

Unsurprisingly, the Guide stresses the importance of ADR, noting both that ADR may be appropriate before the proceedings have begun or at any subsequent stage and that the later ADR takes place, the more the costs which will have been incurred, often unnecessarily. As we set out on pages 6-7 below, Fenwick Elliott has been involved in research entitled Mediating Construction Disputes which provides further evidence of this. Equally unsurprisingly, the TCC Guide lays additional stress on two Court-backed ADR initiatives, Early Natural Evaluation (“ENE”) and the Court Settlement Process. The take-up of ENE has been low. Perhaps one reason for this is that a party with a weak case will much prefer taking its chances in a mediation or other negotiation-style ADR rather than submitting its case for an informal evaluation or judgment.

The Court Settlement Process (“CSP”), a form of mediation carried out by TCC judges, was more of a hit. During a pilot scheme carried out in 2007/8, 14 out of 18 cases were settled. However, again, experience suggests that this is not popular with parties. This may be because of the perceived different skill sets between a judge who makes a decision or finding and a mediator who is specifically trained not to do that. Of course, the judge who took part in the CSP would not, if the case did not settle, hear the actual trial.

Expert evidence

The revised Guide contains an interesting discussion on the presentation of expert evidence. It notes that particularly in large and complex cases where the evidence has developed through a number of experts’ joint statements and reports, it is often helpful for the expert at the commencement of his or her evidence to provide the court with a summary of their views on the main issues. This can be done orally or by way of a PowerPoint or similar presentation. The purpose is not to introduce new evidence but to explain the existing evidence.

It then lists the ways in which expert evidence is given. Most of this is fairly standard, but the section on expert evidence ends by referring to an Australian practice also used in International Arbitration where the experts for all parties are called to give concurrent evidence, colloquially referred to as “hot-tubbing”. The Guide notes that, frequently, hot-tubbing allows the extent of agreement and reason for disagreement to be seen more clearly. The Guide also suggests that the TCC will look favourably on this process, noting that the giving of concurrent evidence is frequently consented to by the parties, and the judge will consider whether, in the absence of consent, any particular method of concurrent evidence is appropriate in the light of the provisions of the CPR. We discuss this relatively new process to the UK at least - in more detail at pages 8-9 below.

Conclusion

These may seem relatively minor changes, but once implemented they will ensure that the TCC retains its position as one of the most efficient courts in the UK.

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  • 1. [2010] EWHC 659 (TCC).