Our learned friends

Parties to construction disputes have, broadly, four methods of resolving their differences: alternative dispute resolution (negotiation, mediation and so on), adjudication, arbitration and litigation. It is entirely a matter for the parties which procedure they adopt. They will no doubt choose whichever procedure best suits their commercial interests.

If the parties to a construction dispute choose to litigate, that will come before the Technology and Construction Court in London or in one of the other 10 court centres where the TCC operates. It then becomes the task of the TCC to manage that litigation to trial or settlement.

The second edition of the TCC Guide, which came into force last Monday, is a manual of the procedures that the TCC will follow at each of its court centres across the country. The Guide supplements the Civil Procedure Rules (which apply to all civil courts) by focusing on the requirements of technology and construction cases. The time is ripe for a second edition of the Guide, as law and practice in construction litigation have moved on since the first edition in 2001.

Section two of the Guide offers guidance on the pre-action protocol for disputes and seeks to ensure that there is proportionality in the costs that the parties incur during this period. Section three deals with the early stages of litigation and sets out the procedures by which cases are assigned to appropriate judges.

Section four is all about access to the court, including telephone hearings and paper applications, which may be used to save costs in resolving the less complex procedural disputes.

Sections five and six deal with case management. Section seven deals with ADR, which may become appropriate during the course of litigation.

Section eight gives guidance on the thorny topic of preliminary issues. When wisely used in appropriate cases, preliminary issues may enable the parties to make huge savings in terms of costs and time. However, when preliminary issues are ordered in inappropriate cases, they can have precisely the opposite effect. For this reason, section eight sets out the benefits and pitfalls of preliminary issues in some detail.

Section nine sets out the procedure for adjudication enforcement – a matter upon which the Civil Procedure Rules are silent. Section 10 deals with arbitration claims. In this area, the approach of the TCC is similar to that of the Commercial Court.

The Guide, which came into force last Monday, is a manual of the procedures that the TCC will follow at each of its centres across the country

Sections 11 to 13 concern disclosure and the preparation of factual and expert evidence. Section 14 deals with the pre-trial review and section 15 is dedicated to the trial itself. The parties and the court will co-operate in order to limit the trial to its proper length and – so far as possible – to keep some proportionality between the costs being incurred and the sum at issue.

Every case is different and the detailed directions given must be tailored to the circumstances of individual cases. Nevertheless, the TCC judges have built up a huge body of experience in the management and trial of construction cases. This experience is encapsulated in the Guide.

The consultation process that led to its preparation involved close liaison with judges, barristers and solicitors specialising in TCC work in London and around the country.

There has also been extensive consultation with court users, experts, arbitrators and adjudicators. In the course of this consultation exercise, I have attended TCC user committee meetings in London, Birmingham, Manchester, Liverpool, Cardiff and Leeds. Each of these meetings was immensely helpful. For example, concern was expressed by a number of court users outside London that the

pre-action protocol (as currently applied) was putting parties to undue expense, especially in smaller cases. This point is now addressed in paragraph 2.1.3 of the Guide.

To take another example, the user committees at two court centres strongly favoured the Guide’s setting out a procedure for adjudication enforcement. The second edition does this in section nine. Indeed, an experienced solicitor from Manchester kindly produced the first draft of the adjudication enforcement directions that now appear as appendix F.

May I, through the courtesy of this journal, thank all court users and practitioners for their participation in the consultation exercise. I hope the Guide will facilitate the smooth progress of all construction disputes that the parties choose to bring before the courts.