The increasingly mobile judges of the TCC are happy to do you a trial in the cheapest, most convenient part of the country. But how do you decide where that is?
Londoners often say that everything is better in London than in other English cities. Much though this may annoy the inhabitants of Leeds, Liverpool and Manchester, Londoners have a lot of ammunition to support their view. They have on their doorstep more good restaurants, bars, shops and clubs than other cities. In London you get the best theatre, opera, concerts and galleries. It is the centre of government and a lot else besides. The list is long and impressive.
Some years ago one heard the same sort of thing said about the courts. Far better to take your case to London, people said. Don’t risk it being tried in a regional court. Go to the experienced specialist judges in the capital. That is where any important case should be tried. Nowadays you don’t hear that, or at least not so much.
In the old days construction disputes were tried by judges who were quaintly named “official referees”. Their courts were in a far flung corner of the Royal Courts of Justice referred to as the OR’s corridor. These judges were not High Court judges; their status was somewhere between county court and High Court level.
Today the Technology and Construction Court (TCC) consists of a number of High Court judges and senior circuit judges who are all specialists in construction law and related areas such as professional negligence. Most importantly, however, the TCC is the only part of the Queen’s Bench Division that offers a fully nationwide specialist court service. The High Court judges in the TCC are based in London, but they go all over the country to try cases. In places like Manchester and Birmingham, there are also senior circuit judges who are well experienced in trying complex and high-value TCC cases.
An issue that often arises is where a TCC case ought to be tried. Typically the parties are situated in different parts of the country. The claimant may want the case tried in London, whereas the defendant may want Manchester. The site of the project about which they are fighting may be somewhere else altogether. An application to the court may be necessary to sort this out.
Far better to take your case to London, people said. Don’t risk it being tried in a regional court. Go to the experienced judges in London. That is where any important case should be tried…
This happened in Tai Ping Carpets UK vs Arora Heathrow T5. Judge Coulson, who heard the application, took the opportunity of setting out a few guiding principles. Citing Judge Ramsey in Neath Port Talbot council vs Currie & Brown Project Management, he said that generally where there is a TCC judge at a regional centre that is convenient for the parties, or is the appropriate place for management and trial, the case should remain there. If the case merited trial by a High Court judge of the TCC, then it would generally be better for the judge to travel to the regional centre rather than transferring the case to him in London.
In Tai Ping, the claimant had started the case in Birmingham and wanted it to remain there. The defendant wanted it to go to London. The arguments relied on by each party were fairly typical. The claimant said it was a small company based near Birmingham, its witnesses and solicitors were all close to or in Birmingham, and generally it would be more expensive and inconvenient to transfer to London. The defendant, on the other hand, was based just outside London and the subject matter of the dispute was close to London, its witnesses, counsel and solicitors were in or around London and it offered to put up the claimant’s advisers and witnesses in one of its hotels in London at a discounted rate.
The balance of convenience was the test.
The judge said that most of the factors relied on by the parties cancelled each other out. However, it was the claimant’s case and, other things being equal, that should carry some weight. Also, it was probably true that London would prove to be the more expensive option. The amount at stake was not large and so it was important that costs be kept down. So he plumped for Birmingham. The good thing is that TCC judges today put the convenience of the parties above the convenience of the court.
Tim Elliott QC is a barrister and arbitrator specialising in construction at Keating Chambers