Succeeding beyond dispute

The Technology and Construction Court, formerly the Official Referees’ Court, is the only specialist construction court in the world, offering a service in which an assigned judge looks after the case from its start to finish. It has had a reputation for innovation and creative thinking. After one or two highly publicised problems a few years ago, a raft of reforms has ensured the court can offer an effective and proportionate method of resolving any type of construction-related dispute.

A bit of history

The Official Referees were brought into being by the Judicature Act of 1873, to replace juries in cases involving “any prolonged examination of documents or accounts” or similar matters of detailed investigation. From the outset, the bulk of their work was made up of construction disputes; to that extent, at least, little has changed.

By the late 20th century, they were a popular and busy judicial resource, with their own courts in an impossibly obscure location on the top floor of the Royal Courts of Justice on London’s Strand. By this time, it had become a serious anomaly that, for example, a dispute about the defects in the heating and cooling system of a ship, worth £1m, would be heard by a High Court judge in the commercial court, while a dispute about a similar system in an office block, worth £10m, would be heard by a TCC judge who was not a High Court judge. This problem was thrown into sharper relief a few years ago, when one or two decisions of TCC judges were overturned in trenchant terms by the Court of Appeal.

A reformist agenda

As a result, a wide range of reforms have been introduced into the TCC. The first was the introduction, in 1998, of a High Court judge in charge of the TCC, who would run the court and undertake some of the more important trial work. The TCC has been fortunate that those chosen to fulfil this role have had considerable construction law experience: Mr Justice (now Lord Justice) Dyson, Mr Justice Forbes, and Mr Justice Jackson (co-author of the best-known book on professional negligence).

In 2005, it was agreed that a second High Court judge would be appointed to spend half his time sitting on TCC business, and again, TCC users were delighted with the subsequent appointment to this post of Mr Justice Ramsey, a former head of Keating Chambers.

The days when construction disputes could only be resolved by the TCC after a lengthy and expensive trial are over

At the same time, the number of senior circuit judges at the TCC in London was reduced from its maximum of eight to five full-time judges.

In October 2005, a new, and much expanded version of the TCC guide was published, designed to simplify and co-ordinate all aspects of case and trial management in the TCC. An example of the benefits brought about by the guide can be found in one of the major areas of the TCC’s work, namely the contested enforcement of the decisions of adjudicators. The TCC has devised a clear procedure by which a party that is seeking to enforce such a decision can obtain, at the start of proceedings, a detailed timetable for all the necessary interlocutory steps, and a hearing date within a month of commencement.

The days when construction disputes could only be resolved by the TCC after a lengthy and expensive trial are over. This can be seen in a number of different places in the guide. For example, the TCC will be more ready to hear specific disputes by way of a preliminary issue, so that a binding result can be obtained as quickly and cheaply as possible. In Bella Casa vs Vinestone [2006] BLR 72, I decided the main point in the case on the basis of the parties’ written submissions, without an oral hearing at all. This procedure is appropriate for those who may be aggrieved by an adjudicator’s decision that turned on a point of contract construction, or some other point of principle, and who wish to obtain a fully binding determination of the point in issue.

Judges become mediators

In addition to the various ways in which the TCC can provide a binding determination of a construction dispute, it can also offer early neutral evaluation or even, if the parties desire it, a mediation service.

There was a surprising fuss when the mediation service was announced: it appeared that the mediation community was concerned about a perceived loss of business, and was unaware of the mediation services provided by many judges, in many different types of courts, all over the country. For anyone still worried that the TCC is taking away their livelihood, I hope I can reassure them: mediation by the TCC judge will only ever happen if both parties, and the assigned judge, agree that it is the most appropriate course. It is unlikely, at least in its early days, to be over-used.

There was a surprising fuss when the mediation service was announced: it seemed the mediation community was concerned about a perceived loss of business

However, it seems to me to be sensible that mediation can at least be offered by the court, particularly as the decision to offer the service was in response to a number of requests by parties in ongoing litigation. These parties felt that since their judge knew the details of the case, he should be the one to attempt to mediate a settlement.

A one-stop shop

The TCC now offers a range of services for the resolution of construction disputes. The TCC judge will produce a binding judgment at the end of the trial, either sitting as a judge of the court or as an arbitrator pursuant to s93(3) of the Arbitration Act 1996. The TCC judge will consider the enforcement of an adjudicator’s decision, and, even if the decision is enforced, he can subsequently consider the underlying dispute and produce a judgment which, unlike that of the adjudicator, is permanently binding. The TCC judge can also determine specific issues quickly and cheaply, sometimes without an oral hearing at all. He or she can also offer early neutral evaluation, and even mediation.

The TCC’s future

The future for the TCC looks bright. Although there will always be a certain demand for lengthy trials to determine complex claims for defects, delays and repudiation arising out of major infrastructure projects, the TCC can now offer a more bespoke service where, if appropriate, particular issues can be determined without reference to all of what Lord Justice Dyson once memorably described as “the grinding detail” of construction disputes. Delays are a thing of the past: the greater involvement of High Court judges in the TCC has reduced the time between the start of an action and its trial to an average of about 9-12 months.

The court is dealing with claims arising out of Wembley stadium and the Midlands M6 toll-road, the two biggest civil engineering projects in the UK in recent years. It is identified as the dispute resolution forum in a number of the construction contracts necessitated by London’s successful bid to host the Olympics in 2012. It is also referred to in the new JCT standard forms of contract. In addition it is hoped that, in the next few years, more disputes from outside the UK will be brought to the TCC, particularly given Mr Justice Ramsey’s experience as a QC in international construction arbitrations.

Mr Justice Jackson stands down as the judge in charge of the TCC next year. The users of the court owe him a considerable debt of gratitude for all he has done for them, and the significant increase in the profile of the TCC that has resulted from his efforts. It is to be hoped that these achievements will be built on in the next few years.

Finally, in the light of rumours that have been circulating recently, it is right to make clear that, as part of a wider review of the Queen’s Bench Division, the possibility is being considered of having at least one permanent High Court Judge sitting in Birmingham. Whether, if that happened, the High Court judge in question would undertake any TCC work is doubtful, particularly given the already flourishing TCC in Birmingham. Contrary to reports elsewhere, the possibility that the London TCC might somehow be transferred wholesale to Birmingham has not even been considered, let alone proposed.