The principal arena for construction dispute settlement has become a major force in the English legal system
The Technology and Construction Court (TCC) is thriving. By February 2011, in London it will be a wholly High Court institution. There are now four High Court judges and soon there will be five. The authorities have recognised the importance of construction and engineering activities to the national economy and the fact that multimillion-pound disputes regularly arise in these areas means these High Court judges are sorely needed. In addition, there are TCC judges throughout England and Wales at all 14 main court centres to provide expertise and experience for cases involving parties outside London.
Next year, the London TCC will move from its ageing premises in St Dunstan’s House on Fetter Lane to the new Rolls Building, also on Fetter Lane, which is to house the TCC, the Commercial Court and the High Court Chancery Division. They will remain separate, but will be brought together in a building with modern facilities, providing a unique combination of courts giving a vital service to all parts of the business community, as well as to individuals caught up in litigation.
The TCC has developed over the years from the old Official Referees, who often did final account and defects claims. The TCC today deals with all aspects of building and engineering, as well as with computer technology, which has emerged as an important industry within the economy.
Professional negligence and fee recovery cases are regularly heard in the TCC. There are a surprising number of fire claims, involving arguments about the causes of fire. Dilapidations claims arise at the conclusion of leases and, inevitably, there are issues about their extent. The court deals with arbitration claims as well - for instance, appeals from arbitrators’ awards or a challenge to jurisdiction. One interesting relatively new area is in the field of public procurement, where the Public Procurement Regulations 1996 enable tenderers to challenge the award of public contracts to another.
There are a lot “cross-over” cases that could theoretically be dealt with elsewhere, but many parties recognise the TCC judges as having a particular ability to deal with them. For instance, tree roots damage claims that involve consideration of the causes of damage to buildings. Other nuisance claims include complaints about noise from construction operations, smells and fumes from rubbish dumps and even the alleged proliferation of mosquitoes and flies.
A 2009 piece of litigation highlights the diversity of TCC cases. This was the Corby birth defects claim, which arose out of the major reclamation of the old British Steel
site in Corby, Northamptonshire, over a period of 15 years. This case involved issues of alleged negligence in the reclamation, which is regular TCC work, as well as medical
issues of how this could cause birth defects, which is not. The affected children won their case.
A significant part of the TCC’s work relates to adjudication. Since May 1998, when the Construction Act came into force, thousands of adjudication-related cases have been litigated, although many resolve themselves before the final judgment. In times of economic downturn in particular, parties will turn to the adjudication option, which will be cheaper than litigation. Equally, however, losing parties will resist payment and face enforcement through the court.
In the past two years there has been a substantial increase in the number of TCC claims, which is obviously a result of economic conditions. Against that, there has been a real increase in claims that then settle or that produce default judgments against effectively insolvent parties. While the increase in the number of cases is no cause for rejoicing, the TCC is well equipped up and down the country to cope with it.
The TCC has always been innovative. It was the first to introduce written witness statements and the practice of getting experts to meet and list what they agree and disagree about.
More recently, the TCC has adopted a court settlement process by which judges will, with the parties’ agreement, mediate to try to achieve settlement. This has achieved numerous settlements and saved the parties involved considerable time and money.
The court has gone from strength to strength and should continue to do so.
The TCC cases are regularly reported and commented on by Building’s legal eagles, usually in a polite and complimentary way, although intelligent criticism is always welcome. They will continue to be fed interesting judgments for their columns in the future.
Mr Justice Akenhead is one of the High Court judges at the TCC in London; he became the judge in charge on 1 September