A new guide to the Technology and Construction Court (TCC)

A new edition of the Technology and Construction Court (TCC) Guide is published shortly and will come into effect on 3 October 2005. Although a guide through the procedure of the court is not everybody's idea of good bedtime reading, this one is well presented and will be well worth a look. We review some highlights.

Since Mr Justice Jackson took over as Judge in Charge of the TCC last autumn he has initiated a number of reforms most of which now appear in the new edition of the TCC Guide. The most far reaching and well-publicised reform is the classification of cases as HCJ (High Court Judge) or SCJ (Senior Circuit Judge) when a claim is issued at or transferred to the TCC in London.

Case classification

If a case is classified HCJ it will be managed and tried either by the Judge in Charge or by another High Court Judge, rather than by one of the other judges assigned to the TCC. The other Judges, who have previously had responsibility for the management and trial of all cases issued or transferred to the TCC, are Senior Circuit judges, a rank somewhat less than a High Court Judge.

If the Judge in Charge classifies a case as SCJ he may either assign it to a specific SCJ or the SCJ will be assigned by operation of the court rota. This gives the Judge in Charge more control over the allocation of cases. Cases had previously been assigned by rota only and managed by the court registry.

If the Judge in Charge is not able to take on an additional case (although he will now spend all his time doing TCC work rather than only half his time as previously), an alternative HCJ will be identified after consultation between the Judge in Charge and the Vice President of the Queen's Bench Division of the High Court. A number of HCJs, as set out below, have been identified as likely to be assigned TCC cases.

The introduction of the classification system, and in particular the decision to involve more High Court Judges in TCC work, was made in recognition of the importance to the UK GDP of the construction and IT sectors and the complex and arduous disputes that can arise from within them. It is something that court users have campaigned for over a number of years. This reform is a step in the right direction, although concern has been expressed about the lack of experience of TCC work amongst the HCJs identified for the role. Pressure continues for the appointment of a HCJ from the specialist construction bar.

Which cases will be classified HCJ?

In practical terms, the Judge in Charge will decide whether a case should classified HCJ or SCJ by reference to the following matters:

• the size and complexity of the case;
• the nature and importance of any points arising;
• the amount of money at stake;
• whether the case is one of public importance;
• whether the case has an international element or involves overseas parties; and
• the limited number of High Court Judges and the needs of other court users, both civil and criminal.

When issuing proceedings, any party to the proceedings may write to the court setting out matters relevant to classification. However there is a warning about being over-verbose: the letter will seldom need to exceed one page and must never exceed two pages.

It may become evident over time which cases are more likely to be classified HCJ rather than SCJ. The Guide says the majority of cases will be SCJ. It is possible to move from one classification to the other. Certainly experience shows us that it is often the lower value cases that are the more complex and require a higher level of case management. The test may be difficult to implement effectively in practice.

Pre Action Protocol

The Guide provides some useful interpretation of the Pre Action Protocol for Construction and Engineering Disputes (the PAP). For example the Guide states that the PAP:

• must not be used as a tactical device to secure advantage for one party or to generate unnecessary costs; and
• does not impose a requirement on the parties to marshal and disclose all the supporting details and evidence that may ultimately be required if the case proceeds to litigation.

A significant change is the requirement to include in the bundle for the first case management conference the letter of claim, the response and any agreed note of the pre action meeting. The inclusion of these documents will enable the court to review whether the parties have complied with the PAP and impose a stay or sanctions if one or other of them has not complied. Perhaps more importantly, the knowledge that these documents must be filed with the court and may be scrutinised at a later date, may act as an encouragement to parties to act reasonably during the PAP process.

PAP costs

A significant clarification is given in respect of the costs of compliance with the PAP. The Guide states:

• if compliance with the PAP results in settlement, the costs incurred will not be recoverable from the paying party unless this is specifically agreed;
• if settlement does not result, the costs cannot be recovered as costs unless the steps taken in compliance can properly be attributable to the conduct of the action.

The guide reflects the recent decision of Judge Coulson in McGlinn v Waltham Contractors where costs incurred in responding to claims in the PAP which were not included in subsequent litigation were not recoverable, but costs relating to claims which did survive could in principle be treated as costs "incidental to" subsequent proceedings and as such be recoverable.

It is likely that there will be further caselaw on the issue of PAP costs particularly as recoverability will depend upon the particular circumstances of each case and guidelines will need to be established. For example, will the costs of the Pre Action Meeting be recoverable? It seems unlikely.

Some other improvements to be noted

The Guide strives to define best practice and to keep the unnecessary expenditure of costs to a minimum. To this end, the following guidance is given:

• It may be more cost effective to postpone the first case management conference (CMC) until after service of the defence; if a request is made and there is agreement between the parties, the judge is likely to grant the request.
• The judge will endeavour, at CMCs and other hearings, to make orders in the terms that have been agreed by the parties. Agreed terms will always form the starting point of the judge's consideration of the orders to be made.
• The use of email is encouraged. Telephone hearings and paper applications are also encouraged in suitable cases.
• The court acknowledges the importance of experts in TCC cases but will insist upon the effective and proportionate use of experts. The court is likely to require the identification of the precise issues that each expert is to address in his/her report.
• Save in exceptional circumstances, any reserved judgment will be handed down within 3 months of the conclusion of the trial.

This Guide gives practical help and assistance to the regular user of the TCC as well as the occasional. A good bedtime read? Well, almost.

Guide to the new HCJs

Christopher Clarke was head of chambers at Brick Court Chambers, specialising in all aspects of commercial law and professional negligence. He was counsel to the Bloody Sunday inquiry from 1998-2004, and was appointed to the High Court in January 2005 (Commercial Court). He has been a deputy High Court Judge since 1993.

Of the new appointments to the TCC, Patrick Elias has the most experience as High Court Judge, having been appointed the Queen's Bench Division in 1999 (Administrative Court). Prior to his appointment to the Bench, Elias was a leading employment silk at 11 King's Bench Walk.

Richard Field practiced at 1 Essex Court before being appointed to the High Court (Commercial Court) in 2002. Whilst in practice he was involved in the Barings High Court litigation resulting from the collapse of the bank following the trading activities of Nick Leeson.

The other appointments are Duncan Ousley, an expert in planning law who was previously at 4/5 Grey's Inn who was appointed to the High Court (Administrative Court) in 2000. Peregrine Simon, a shipping expert who practiced at Brick Court Chambers, was appointed to the Bench (Commercial Court) in 2002.

If you have any queries withy regard to this article please contact Caroline Cummins on caroline.cummins@cms-cmck.com or on 020 7367 2914.