Problems at the TCC had led to a decline in its workload. So, to restore its reputation, it has embarked on a series of radical changes …
The Technology and Construction Court, in its previous name of the Official Referees’ Court, was the first in the common law world to be set up as a court specialising in construction disputes. Its origins go back to the great reforms of 1875 when the official referees were first created. After many refinements, the court emerged in its present form in 1998 when it was renamed the TCC. Its judges have been, since 1971, senior circuit judges but the work is entirely High Court work. As a concession to the public, the TCC judges were granted the accolade of being addressed, like all High Court judges, as my lord”, unlike other circuit judges whose less lordly address is “your honour”. Even in the era of the internet, the Blackberry and missions to Mars, such Gilbertian distinctions still matter in the law.
A new chief in charge
All was not well in the TCC when a new judge in charge, Mr Justice Jackson, or Rupert Jackson as he is known to his many friends, took over last year as the presiding judge. A mild reform had occurred a few years ago when a High Court judge was, for the first time, appointed as judge in charge of the TCC. This was a marginal increase in the status of the court, since the three High Court judges in charge of the TCC before Jackson, despite their distinction, only sat on a handful of its cases. Now, within a year of Jackson’s arrival, the TCC has been transformed and the reforms will continue apace.
The background to these changes should be set out. The TCC sits at the apex of construction dispute resolution in England and Wales. Many construction disputes are still tried by the court, most construction arbitration appeals and other judicial hearings involving the judicial supervision of construction arbitrations are heard by the court and it also deals with all adjudicator enforcement proceedings. Furthermore, the TCC is a leader in promoting mediation as a means of resolving construction disputes of all kinds and, on the rare occasions that disputes arising out
of expert determinations reach a court, such hearings are invariably dealt with by the TCC.
The TCC is a national court whose principal venue is located in St Dunstan’s House in London. Currently six judges sit full time in the London TCC. Three full-time judges also sit in, respectively, Birmingham, Manchester and Leeds. Nearly 30 further senior circuit judges and circuit judges sit part-time in the TCC in other court centres around the country. Yet another corps of circuit judges deals with smaller TCC disputes in the county courts.
The heart of the problem
Historically, most of the work of the TCC has been dealt with in London and the situation that Jackson was confronted with was perceived as largely being confined to the London court. The lord chief justice asked Jackson to undertake, on his arrival, a review of the court. First and foremost Jackson identified a significant drop in the workload of the court and a perception that much of it was the result of the disenchantment of its users. Part of this downturn was attributable to the growth of adjudication and to the general downturn in civil litigation arising from its unacceptable costs and the consequent rise in mediation.
However, the court had also lost some of its attraction because of perceived weaknesses in its methods of working. There were unacceptable delays in delivering judgments, inconsistencies between judges in the way in which cases were managed and, regrettably, some well publicised instances of unacceptable judicial high-handedness. A further perceived weakness was the view of some court users that the TCC, although a part of the High Court, had a lesser status because its judges were not High Court judges.
On learning of these varied concerns, the deputy lord chief justice personally directed the introduction of a series of reforming measures. The reforms have been of several kinds and affect the composition of the court, the procedures it uses, the cost and speed of proceedings and the adoption of a more open and user-friendly approach to court users.
The number of judges sitting at St Dunstan’s House has been reduced by two. One of those who have left the court is Judge Humphrey Lloyd who has recently retired. This retirement had been planned for some time and it was a coincidence that it actually occurred at the time when the reforms were being implemented. Lloyd was my pupil master and I have a particular reason for regretting his retirement since he has been an inspiration and a pioneer in all forms of construction dispute resolution. He now intends to practise as an international and domestic arbitrator from his old London chambers, Atkin Chambers, in Gray’s Inn.
Judge Richard Seymour has also left the court and will play no further part in the work of the TCC. Neither judge will be replaced.
A second full-time High Court judge has been added to the London TCC. This has occurred, initially, by resort to a panel of five High Court judges, known in the trade as the ‘Jackson Five’
The principal change to the TCC has occurred as a result of the significant enhancement of the use of High Court judges. Jackson, and any future judge in charge, will sit full time in the London TCC. The equivalent of a second full-time High Court judge has been added to this court. This addition has occurred, initially, by resort as needed to a panel of five High Court judges, known in the trade as the “Jackson Five”, but it is hoped that these will soon be replaced by a full-time High Court appointment from the practising profession, possibly from the ranks of specialist construction law practitioners.
It is intended that the largest multimillion-pound cases, and those involving points of law on which the industry would welcome guidance, will be tried by Jackson or by one of the other TCC High Court reinforcements.
The remaining five senior circuit London-based TCC judges will continue to sit full time in the court and it is expected that the growth in the court’s workload will leave these judges with a workload similar to that which they had before the recent downturn.
Code of conduct for judges
Three further procedural changes have been introduced. The first is the public adoption by the TCC judges of the recently promulgated Code of Judicial Conduct. This, in real terms, means that all judges in the TCC are publicly committed to producing all judgments within three months and most within days of the conclusion of a hearing and to the scrupulous observation of the highest standards of behaviour in court. Complaints about delay or other forms of judicial unfairness should be a thing of the past and a clearly defined avenue for complaints will be established.
The most significant change that has occurred is the adoption of a new TCC Practice Guide which will, when it takes effect on 3 October 2005, set out all TCC practices in a clear and user-friendly fashion.
One of the hallmarks of the TCC is the hands-on case and trial management adopted by its judges. In the past, there were many complaints about the inconsistencies that had grown up because different judges used their procedural powers in different ways. The new guide has been the subject of widespread consultation among all court users and it has, in many instances, redefined the practices to be adopted so as to ensure speed, economy and ease of use and so as to be readily accessible and intelligible to all users. It will be published widely in September. A jointly sponsored forum, to be run in October by the two practitioner associations, Tecbar and Tecsa, will introduce the new guide to court users.
Other changes may be briefly summarised. The TCC judges are leading the way in seeking to implement a judge-based mediation service as an adjunct to TCC cases. This will enable a TCC judge, in appropriate cases to act as a mediator. The TCC User’s Committee has been revamped so as to make the TCC more responsive to the needs of its users.
The TCC judges intend in future to take a more active stance in keeping costs to a minimum. To that end, they will be using their powers to cap costs, to assess costs summarily and to adapt court procedures in line with the overriding objective of controlling the expense of TCC litigation. The court is to revisit the pre-action protocol to see whether the procedure can be simplified and whether the cost of implementing it can be reduced. This is a much valued process that requires parties, before embarking on TCC cases, to attempt to negotiate a settlement to their disputes by using a structured negotiation procedure. The TCC will, at the same time, participate in a detailed survey of the use and misuse of the protocol.
I should also mention the participation by the TCC judges in the development of construction dispute resolution practice. The judges seek to provide help and guidance through lectures and seminars, and by contributing to the debate about reforming measures such as the review of adjudication law and practice.The TCC is now able to offer speedy trial dates and time-limited trials. The speed and cost of litigation in the TCC compares favourably with other forms of construction dispute resolution. The quality and standards of service and of the judicial process are now, it is hoped, of the highest quality. The reforms are already bearing fruit, since there is a marked upturn in the number and size of cases coming into the court.
Long may it continue.
His Honour Judge Thornton is a judge of the Technology and Construction Court