A case for revision

The Technology and Construction Court (TCC) is a specialist court, operating at 11 centres across the country. In practice, it hears all litigation concerning the Housing Grants, Construction and Regeneration Act 1996 (the Construction Act) and the enforcement of adjudicator's decisions.

Mr Justice Jackson took over as the judge in charge of the TCC last year and the second edition of the Technology and Construction Court Guide, (TCC Guide) published in October, reflects some of his reforms to improve the TCC’s service.

While the Civil Procedure Rules govern the procedures that need to be followed, the Guide is designed to provide straightforward practical guidance to the conduct of litigation, concentrate on its most important aspects, describe the main areas of practice that are likely to be followed and ensure effective management of proceedings in the TCC.

It also states that failure by a party to comply with these requirements may result in the court imposing cost sanctions and that, in the absence of specific provisions, parties should conduct themselves in the spirit of the Guide.

Some of the more important and relevant areas set out in the Guide are discussed here.

Selection of judges

The most publicised change has been the case classification and the consequent elevation of the level of judge that hears cases referred to the TCC.

Traditionally, the TCC has had only one High Court Judge, which has drawn criticism given the potential size and complexity of construction cases.

The Guide provides that TCC cases will receive a classification of either High Court Judge (HCJ) or Senior Court Judge (SCJ), depending on the case.

The classification is a step in the right direction, but the Guide also provides that most cases will be classified as SCJ. Whether more cases will be heard by HCJs remains to be seen, but following Mr Justice Jackson's reforms, the future looks positive.

Those who wrongly seek to resist payment of an Adjudicator’s decision will now think twice, having read the Guide

Pre-Action Protocol

The pre-action protocol (PAP) applies to construction and engineering disputes, requiring: 1) a letter of claim, including a clear summary of the facts and breakdown of relief claimed; 2) a letter of response; 3) a pre-action meeting, designed to encourage the frank and early exchange of information and avoid litigation before proceedings are commenced.

The Guide provides some useful interpretation of this by setting out, for example, that the PAP must not be used by either party as an excuse to generate unnecessary costs. It also states that it does not require parties to disclose all supporting evidence.

The Guide sets out for the first time that, at the case management hearing, the judge must see evidence of complicance to the requirements described above. As a result, it is more likely that the court will suspend proceedings or impose cost consequences. With this in mind, the parties are more likely to comply properly with the PAP which, in turn, is likely to result in more disputes being resolved.

Enforcement of adjudicator's decision

Many in the industry only experience court proceedings if there is a need to ask the TCC to enforce an adjudicator's decision.

The Guide sets out for the first time guidance about how the party seeking enforcement can apply to ensure the TCC's speeds up the process and reaches a decision within five or six weeks. The fact that the procedure is clearly set out in one source should be welcomed not only by lawyers, but the industry as a whole. It is to be hoped that, consequently, those who wrongly seek to resist payment of an adjudicator's decision will now think twice, having read the Guide and realised that enforcement, too, can be expensive.

In reality, the Guide will be of more interest to the legal profession. But at the very least, the industry should take heart that the TCC recognises its importance, and consequently the necessity of reform to meet its needs.