The furore surrounding Multiplex vs Cleveland Bridge has thrown the spotlight on the TCC, which after a bad patch is now winning the hearts of litigants
The Technology and construction court is one of only two courts in the country that provides a specialised jurisdiction to one industry. Since its origin in the 19th century as the Official Referee's Court, it has gone through a large number of changes. The recent ones have led to a vast improvement, and made it well suited to the construction and engineering business and professions.
The origin of the official referee, contrary to popular belief, had nothing to do with the football pitch. It was a court to which technical matters were referred officially by other courts. This sometimes happened because the referring court felt unqualified to rule on the dispute. As a result it was often dealing with the minutiae of damages or account claims and it had no independent jurisdiction.
As it evolved, it began to acquire a life of its own, so that by the 1960s and 1970s it was well established in its own right. Three senior circuit judges, Stabb, Fay and Hawser, in London, secured it an enviable reputation for quality. Official referee courts became established outside London. However, as time marched on, the waiting lists got longer and complex cases sometimes took three to four years to resolve, even though by the mid-1990s there were eight official referees in London.
The civil procedural rules were introduced in 1996 and contained special rules for the TCC, as it became known. That, and the introduction of statutory adjudication, contributed to a decline in TCC business. The rules tended to "front-load" the cost of litigation, while some parties found that adjudication was such an advantageous or searing experience that the prospect of litigation or even arbitration became unattractive. Of course, a great benefit of adjudication was rapid (if rough) justice. Another problem, at least for the London TCC judges, was a real concern as to the suitability of at least one of the judges.
Over the past few years however, the importance of the TCC has been recognised more than ever. There are two High Court judges in London appointed to the TCC; until last November there had only been one and before the mid-1990s none. Mr Justice Jackson and Mr Justice Ramsay are immensely experienced and very "user friendly". There are five other TCC judges in London and some eight others in major cities. Across the country, the quality is maintained; for instance, judge Frances Kirkham in Birmingham is highly regarded.
Mr Justice Jackson and Mr Justice Ramsay are immensely experienced and very “user friendly”
Another facet of the new-look TCC is the speed with which they deal with the business. The judges have recognised the importance of dealing promptly with the enforcement of, or challenges to, adjudicators' decisions; they are regularly disposed of within four to six weeks. Even full trials are dealt with expeditiously. For instance, the case of Alfred McAlpine Capital Projects Ltd vs Tilebox Ltd related to a claim for liquidated damages for more than £5m; proceedings were started on 20 December 2004; after a trial involving seven witnesses, judgment was given three months later on 25 February 2005. That is by no means the exception.
And while the judges have become more user-friendly, the management and handling of cases has improved. The offices, clerks, associates and judges are accommodating and helpful.
A TCC guide was issued in October 2005, and this explains clearly what parties can expect. The judges are more than willing to encourage settlement; time can be set aside for mediation and indeed there are controversial proposals that court sponsored mediation will soon be available. A system of "early neutral evaluation" is available to parties whereby a judge will express a non-binding view on the issues dividing the parties.
The TCC regularly deals with massive disputes, such as the titanic battle in court seven between Multiplex and Cleveland Bridge over the Wembley stadium which is currently drawing to a close, as well as more modest cases. It can compete on cost, speed and quality with any other form of dispute resolution. Give it a try.
Robert Akenhead QC is a barrister specialising in construction law at Atkin Chambers and joint editor of Building Law Reports