The Technology and Construction Court plays a vital role in our industry – now, a consultation paper on its modernisation is seeking your views
Changes may be afoot for the technology and Construction Court that will have an impact on those involved in arbitration, adjudication and mediation. But before explaining these possible developments, we must put the court in context.

The modern Technology and Construction Court stands at the centre of construction dispute resolution for five reasons:

  • The court exists to case-manage and try any construction dispute that the parties cannot resolve through any other dispute resolution body. It is the first and last resort for any litigant.

    Currently, there is no delay in obtaining a trial date. Indeed, litigation is as fast as arbitration and, for the parties, significantly less expensive too. This service is supplemented by wide-ranging use of the new civil procedure rules and the case-management techniques they provide for.

  • The court acts as judicial supervisor of all construction arbitrations. Any appeal, leave to appeal or other application for judicial intervention is referred here. As several standard forms provide for an appeal without the need to obtain leave, there is always a steady, though small, number of such appeals at the court.

  • It is used to enforce all adjudication decisions that require compulsory enforcement. This authority gives weight to the adjudication process, and accounts for much of its popularity and support within the industry.

  • The Arbitration Act allows parties to appoint construction court judges as arbitrators. Once the judge is appointed, the parties obtain all the services and advantages of arbitration, with a professional judge as arbitrator. The leave of the Lord Chief Justice is required, but that is always forthcoming – except when, rarely, there is too much other judicial work around. Another advantage is that this service is relatively cheap. For £1500 per day, the parties get the arbitrator and the use of a court and other support facilities, with no extra charge for reading or award-writing time. (It should be pointed out that any appeal from an award of a judge-arbitrator goes straight to the Court of Appeal.)

  • The court encourages and supports mediation and early neutral evaluations. Many cases are stayed during the course of the pre-trial procedures to allow mediation to proceed, and the stay is only lifted if it has failed. As for early neutral evaluation, the court has been the forerunner in encouraging this. It is, in effect, a cheap and speedy means of mediating a dispute, since the advice of a court judge about the various arguments of the case can be obtained without any extra cost to the parties.

    Clearly, the construction court plays a central role in the administration and development of construction law and dispute resolution. Moreover, the consumer – namely any participant, whether party, arbitrator, adjudicator or mediator – is entitled to, and should press for, a modern, streamlined court offering a full range of high speed services at relatively low cost.

    The consumer is entitled to, and should press for, a modern streamlined court offering relatively cheap services

    At present, however, the court building and the support services it provides leave much to be desired. The same is true for the commercial, admiralty and patents courts, which provide a world-renowned service for domestic and international disputes.

    The Lord Chancellor recognised the potential for development of these courts and their poor support facilities when he appointed consultants 18 months ago, to advise whether there was a compelling business case for the establishment of a new unified commercial court, comprising all four current specialists courts. The consultants' report was sent to the Lord Chancellor in February, and it unhesitatingly recommended that the case for such a court was overwhelming.

    There were two particular findings of the consultants that will come as no surprise to the construction industry, and that led to this overall recommendation. To start with, the industry needs a reduction in the total cost of litigation and an improvement in the user-friendliness and accessibility of the system as a whole. Also, the market considers the high quality of the judiciary and the consistency of decision-making to be a great strength, but believes the present system suffers from the poor facilities at St Dunstan's House in London, where the construction court is presently housed.

    In March, the Lord Chancellor, who is a great supporter of the construction court, announced that he would advance plans to house these four courts in a building close to or within the Royal Courts of Justice, and equip them with modern IT and video-conferencing systems.

    The first stage of this plan will be the imminent publication of a consultation paper, which is seeking responses by mid-February next year.

    The paper will ask for opinions on the proposed location, namely the refurbished wing of the Royal Courts of Justice (currently housing the Family Division, which would be relocated). Another proposal on which views are sought is the way the current specialist courts could share accommodation and resources, and work together. The most obvious way of achieving such harmony is for the separate courts, most obviously the Technology and Construction Court and the Commercial Court, to retain separate lists of cases and judges but to share the suite of courts, facilities and support staff.

    It is important that the views of all in the industry are made known to the Lord Chancellor. I would urge all concerned to obtain a copy of the consultation paper from the Lord Chancellor's department and respond to it promptly.

    The Lord Chancellor is also seeking to promote London as a centre for international commercial dispute resolution. He has set up an advisory committee, chaired by a construction court judge, Judge Toulmin. The committee will advise him on how best to promote London's unique legal services, including those offered to international construction disputes. Any views on how the use of such services – including litigation, arbitration, adjudication and mediation – can be encouraged should be communicated by writing to Judge Toulmin at the Technology and Construction Court at St Dunstan's House, Fetter Lane, London EC4A 1HD.

    • Postscript

    Judge Anthony Thornton is a judge of the Technology and Construction Court.