Mr Justice Jackson took charge of the Technology and Construction Court 10 months ago. Under new rules, he will work there full-time. But what’s he done so far?
On 7 June 2005, the Technology and Construction Court got its first full-time High Court judge.
Previously, the TCC was headed by a High Court judge – currently Mr Justice Jackson – but the court only had his services for half of his working time. In recent months the construction industry and the legal profession had expressed increased concern about the court’s performance.
Complex cases in the London TCC will be allocated now to Mr Justice Jackson or (also for the first time) other High Court judges. However, most cases will continue to be heard by the specialist senior circuit judges, such as Judge Thornton, who are one level below High Court judges in the judicial hierarchy. The head of the TCC will decide whether cases in London should be heard by a High Court or senior circuit judge.
In the 10 TCC centres outside London, a case will only be heard by a High Court judge if the centre identifies it as requiring trial by a High Court judge and the head of the TCC agrees. Guidance will presumably be given to the TCC centres to ensure uniformity of practice.
These developments recognise the importance of the construction industry, the complexity and value of the disputes handled by the TCC and the need for those disputes to be effectively managed by judges of appropriate standing.
Mr Justice Jackson will be at the centre of it all: allocating and hearing the most complex and largest cases. He recently stated: “The TCC provides an essential service to the industry in resolving its disputes … Both the court and the profession must be constantly examining the procedures we use, in order to achieve justice in construction litigation at a proportionate cost.”
A new TCC guide for judges and court users is at an advanced stage of consultation and will probably be issued later this year. Changes to the pre-action protocol for construction and engineering disputes are under consideration.
It is also hoped a decision will be made soon on new accommodation for the London TCC that befits its status and work: the current court at St Dunstan’s House shows its age.
Since Mr Justice Jackson became head of the TCC last September, he has not shrunk from giving guidance on legal hot topics. Building recently reported on his decision concerning liquidated damages (29 April, page 56) and his judgment in Carillion vs Devonport (20 May, page 52, and 3 June, page 58). The latter was notable not only for its helpful guidance on challenging adjudicators’ decisions but also for the speed of the ruling – 22 days from commencement to judgment.
Mr Justice Jackson has also defined when a dispute arises – and therefore when an adjudicator or arbitrator has jurisdiction – cutting through a jungle of decisions. The Court of Appeal endorsed his definition.
In a case called AHL, he confirmed that an agreement is only evidenced in writing (and thereby caught by the Construction Act) if all the express terms are recorded in writing, even if they are irrelevant to the issues in dispute.
In the same case, Mr Justice Jackson confirmed that generally an instruction cannot validly be issued omitting work, if that instruction would detract from or change the fundamental characteristic of the works, unless there are clear words in the contract allowing this.
Mr Justice Jackson recently spoke about the proposals in the Department of Trade and Industry’s consultation paper regarding changes to the Construction Act. He considers the idea that adjudicators should have the power finally to decide their own jurisdiction to be wrong in principle.
He has also restated his view that adjudication is unsuitable for large final account disputes and professional negligence claims – an issue on which the DTI’s consultation paper does not recommend changing the Construction Act.
He observed that parties can invest huge sums of irrecoverable costs in an adjudication, only to refight their dispute in full-blown arbitration or litigation. The TCC can now try cases much more quickly than it could in the 1990s when the Construction Act was conceived and enacted.
So now the industry has a full-time High Court judge. Whatever next – a full-time construction minister?
Rupert Choat is a solicitor advocate at CMS Cameron McKenna. His email is email@example.com