Judges: So very PC

Do the courts move with the times? Some parts of the press regard the courts and the court system as way behind the times. The question posed by one judge over 40 years ago - “Who or what are the Beatles?” - has not helped the perception of many that judges are rooted in tradition and out of touch. Nothing could be further from the reality.

The law itself is based on the common law and statute and, because people and their disputes cannot be judged on laws not yet in place, the law is therefore historical and in place by the time that the judges come to adjudicate upon disputes before them. Construction law goes back in this country hundreds of years, not least because even in Elizabethan times some builders were said to have got things wrong. So yes, some laws may be - literally - stuck in the past, but that doesn’t mean that the way we apply them isn’t modern.

As construction and engineering practices have changed and even improved, so too have the specialist construction courts adapted their procedures to speed matters up and - as importantly - to keep up with modern technology in the managing and running of court cases. The Official Referees, who used to deal with construction business, first introduced the idea of written witness statements, the exchange of experts’ reports and the production of agreed experts’ statements. The Technology and Construction Court, their successor, has continued with this innovative approach, with electronic working arrangements and simultaneous cross-examination of experts (“hot-tubbing”).

One good example is the need, these days, to give disclosure of relevant documents in litigation. In the old days before photocopiers and computers, there would be a very limited amount of documents available to disclose in litigation and even fewer would be actually used in court. However, with computer records and emails, a vast amount of documentation is recorded electronically. The court does not require all these documents to be copied and they can also be disclosed electronically.

Computer technology disputes are an increasingly important part of the TCC’s business and it is necessary for judges to have a good working knowledge of hardware and software

Procedures have been worked out to enable parties to limit what they have to disclose - by key word searches, for instance; the other party can then search the edited electronic disclosure. In those cases that involve many thousands of documents, the parties can agree on the use of document management systems so that there do not physically have to be hundreds of files in court.

What all these procedures are designed to secure is the cheapest and quickest way to dispose of cases. Of course some construction cases are very complicated, particularly in relation to the facts. For instance, a delay claim on a large infrastructure project relating to a timetable that spans three years may well involve a massive, minutely detailed investigation not only into what happened or did not happen but also how it impacted on progress. Over the last 20 years or so, construction professionals have used computer-based programmes in this context to assist in the determination of critical delay. The TCC judges are experienced in critical path analysis based on such programmes. Computer technology disputes are an increasingly important part of the TCC’s business and it is of course necessary for judges and practitioners alike to have a good working knowledge of hardware and software.

The TCC is not going to have to engage too much with Twitter or Facebook, although in the unlikely event that a project manager or site foreman has admitted on his or her Facebook that he or she has “messed up”, that would doubtless emerge during the trial. The court, to save time and money, is willing where necessary to have witnesses examined by way of video-conferencing and is prepared to have procedural meetings on the telephone.

There are some things in modern life where the courts are not quite there, yet. Except in the Supreme Court, there is no televising of court proceedings. However, I’m sure that the audience ratings for the televised TCC proceedings - fascinating though they are to the judges, lawyers and experts who practice here - would be lower than for World Service broadcasts to Patagonia. Judges also do not like mobile phones going off in court and disturbing the proceedings, but perhaps they are not alone there.

So, although not all judges have Jessie J’s or Lady Gaga’s latest albums on their iPods, the TCC judges are not too far behind the times, even in 2011.

Mr Justice Akenhead is head of the TCC