Legal disputes in construction are as important as those in any other industry, so why do our firms have to use the tradesman’s entrance to the courts?
The image of the Technology and Construction Court has suffered of late. There was first the scathing attack directed by the Court of Appeal at one of its judges in the case of Co-operative Group (CWS) Ltd vs International Computers Ltd [see page 30 for an account of this]. More recently, there was a detailed article on the TCC in the November issue of Legal Business that contained descriptions of certain judges that ranged from “petulant” to “gratuitously rude”.
While it is a natural, and sometimes beneficial, wish of journalists to concentrate on the negative aspects of their subjects, any consideration of the TCC must start with its merits. These include:
- A court dedicated to the engineering, construction and technology sectors – no other court system in the world does this.
- Judges well versed and experienced in the complexities of these sectors.
- A court where hearing dates are more quickly available (mostly because adjudication has eased its burden of work).
- A court that has taken the lead in active case management (although some would say certain judges take this too far).
This observation is, of course, unfair on the judges, then and now, who handle highly complex cases, mostly in a manner that would do credit to any High Court judge. However, such comments and perception on the part of clients reduces the standing of the TCC. All other types of large commercial cases are heard before a High Court judge. Why are the construction and technology sectors singled out for different treatment?
The answer lies in history. Back in the 19th century technical disputes were referred to an “official referee”. Construction disputes were heard before these judges who were senior circuit, not High Court, judges. So the situation remained until 1997, when the Official Referee’s Court became the TCC. The other change made was that judges were to be addressed as “my lord” in the same way as High Court judges. But a rise in status did not accompany the name change: TCC judges remained senior circuit judges, and were paid less than High Court judges, with reduced pension entitlement and without the automatic knighthood that comes with a seat on the High Court bench.
The present situation is unacceptable. It is insulting to TCC judges and it is insulting to the construction sector
The present situation is unacceptable on all counts. It is first of all insulting to the judges who handle some of the most complex cases before the courts. It is also insulting to the engineering, construction and technology sector. In recent years the head of the TCC division has been a High Court judge. Currently, it is headed by the well-respected Mr Justice Jackson, who took over in September. He is known to have an agenda for change.
The change that would be most likely to enhance the respect for the TCC would be to announce that all newly appointed judges would be of High Court rank. Alternatively, High Court judges of the Queen’s Bench Division, (to which the TCC belongs), could be assigned for a period to the TCC.
Lord Falconer considers that the office of Lord Chancellor is outdated. How much more so is the notion that construction cases should not be accorded the same status as other major commercial disputes?
Julian Holloway is a partner in Berwin Leighton Paisner