Courts U Like

The long-awaited guide to the Technology and Construction Court has almost arrived. The publication of this document on 3 October will mark a sea change in the way the TCC works, largely because it is commendably focused on the court’s customers. In fact, make that “refocused”, because it is a reworking of a guide initially produced in 2001. And a significant reworking at that: it is four times the length of the original.

The guide is in essence a compact between users and the court. On the one hand it lays down numerous requirements that users must follow to ensure the effective management of court cases. And in return for compliance, the court will provide users with an improved service.

The requirements on court users range from the pagination of bundles to co-operation between the parties. Unlike its predecessor, the guide states that if parties fail to comply with these requirements the court may impose sanctions, including costs orders. It will be interesting to see how this works in practice.

As regards the conduct of cases, the guide has a section on the protocol for construction and engineering disputes and its standards for pre-action conduct. The guide, unlike the protocol, says that where claimants breach the protocol the court may stay the proceedings until the steps required by it have been taken.

One senses from the guide that there will be greater transparency in how the TCC will operate. It sets out for the first time the matters to be considered by the judge in charge of the TCC – currently Mr Justice Jackson – in deciding whether to assign cases to a High Court or a senior circuit judge. This is a recent change in how the court tries its cases.

Most of the criteria are obvious: the size, complexity and value of the case, the nature and importance of any legal points arising and whether the case is one of public importance. Another factor is whether the case has an international element. This makes it more likely that international cases will be assigned to High Court judges, thus bolstering UK plc’s place at the centre of global commercial dispute resolution.

For the first time the guide contains the email addresses of the judges’ clerks. The message is clear: the court is here for you

The guide is also a marketing device; it is intended to put more business, that is disputes, the way of the TCC. There is a section on accessing the court (by paper applications, by telephone hearings and video conferences) and for the first time, the guide contains the email addresses of the judges’ clerks. Judges themselves may provide personal email addresses. The message is: the TCC is here to service your dispute.

The guide also advertises the court’s range of services. Disputes do not have to be resolved by court proceedings. Judges can provide early neutral evaluation of a dispute. This is essentially a process whereby a judge assesses the merits of a dispute in a non-binding fashion, and this can result in its early resolution. TCC judges can also act as arbitrators. Most of this is not new, but the guide gives these services increased prominence.

The guide also stamps on a couple of bugbears that have troubled the court. First, parties are encouraged to agree the orders they would like made at case management conferences, such as the orders for the case timetable. In the past some parties have felt that judges have given orders that seem to pay little regard to the parties’ agreed orders (although this is in keeping with the court's duty to manage cases actively). The guide says that the parties’ agreed orders will now form the starting point of a judge’s consideration of the orders to be made. Also, to avoid the parties being taken by surprise, judges will consider giving prior notice of specific or unusual case management proposals.

Another criticism of the TCC in the past has been a perceived delay in producing judgments. Construction disputes are invariably complex and it is not surprising that judgments take a long time to draft. Despite this, the guide says boldly that, save in exceptional circumstances, judgments will be handed down within three months of the conclusion of the trial.

These changes emphasise a customer-focused approach that can only benefit all who use the TCC. But the customers have to behave themselves to receive the desired service.