Clash points

Building has long been warning about the winds of change blowing through civil litigation after the Woolf reforms. Tony Blackler wrote on 20 August, for example, that litigation pre- and post-Woolf was comparable to construction pre- and post-Broadgate.

The early cases, however, suggest that some lawyers and expert witnesses may not appreciate that the wind is actually a hurricane.

It requires a wholly different approach if they are to retain their clothing. How will this affect the way in which the subcontract industry approaches its disputes? Turning to the cases:

• The Court of Appeal affirmed the decision of county court judges to use their case management powers to debar the defendant's expert from giving evidence as an expert in the proceedings in the case of Stevens vs Gullis and Another (CA, 27 July 1999). The "expert" had been selected and was instructed directly by the employer. He adopted the old-style adversarial approach. The Court of Appeal was trenchant in its criticisms. The expert had "demonstrated by his conduct that he had no conception of the requirements placed upon an expert" under the new rules. Accordingly, the court ruled that he should not be allowed to give evidence to the court even though the consequences for his client were draconian, and could deprive it of its claim.

It has been common practice for subcontractors to use claims consultants selected and instructed by them to put together expert evidence. These "experts" have then on occasion been obstructive. This practice will have to change: is the subcontracting industry ready for this change?

• The Technology and Construction Court looked at an application for pre-litigation disclosure of documents relating to the contractor's dealings with the building control authorities to see whether the contractor had breached the Building Regulations – Burrells Wharf Freeholds Limited vs Galliard Homes Limited (1 July 1999). Galliard resisted disclosure on the basis that if proceedings ensued, Burrells could amend following disclosure in the normal way. The judge was unimpressed – future amendments cause delay and generate costs.

  How many subcontractors have in the past kept unhelpful information to themselves until traditional discovery? Will they now exchange information freely before proceedings begin?

• And a case on costs: Mars UK Limited vs Teknowledge Limited (Chancery Division, 11 June 1999). Mars brought an action for infringement of copyright and breach of confidence. It succeeded in the former but not the latter. The judge considered that the breach of confidence claim was unreasonable in that it had very limited prospects of success. Accordingly, he substantially reduced the award of costs to Mars. Are subcontractors now prepared to bear the consequences of advancing arguments with little prospects of success given the risk of a major hit? Subcontractors are, of course, by no means alone in having exploited the litigation process to their advantage. On paper, they could also be expected to benefit from the level playing field which Lord Woolf has made clear he wants to see. Humphrey Lloyd, among others, has, however, expressed the view that legal costs are likely to be as high as before, and that litigation could now become more rather than less concerned than it has been with who recovers those costs.

Does Rudi think the subcontracting industry is ready for the new transparency required by the rules, as well as for the heavy up-front costs that must now be incurred and the increasingly fierce battles as to who pays them?