REUTERS | Lisi Niesner

A view from the bench: observations on the TeCSA marshalling scheme

I recently had the fortune of sitting on the TeCSA marshalling scheme, which allows junior lawyers specialising in technology, engineering or construction the opportunity to shadow TCC judges for one week. This gave me the unique opportunity to witness hearings from an entirely neutral perspective, without the normal influence of one’s own involvement in either side of the case.

We all know the usual list of do’s and don’ts for a successful hearing but, from an elevated (the marshal sits next to the judge on the bench), all seeing, all hearing perspective, it becomes even more compelling as to why strategic and rigorous case and hearing management is important.

A few matters that particularly struck me from the bench

Although it is sometimes unavoidable, errors in bundling, the inclusion of duplicates and the use of baroque numbering systems do cause the judges real and unnecessary frustration and delay. It may generally be an afterthought but creative systems of organisation tailored to the matter (such as colour coding) did have a real impact on the smooth and efficient running of hearings. It was particularly interesting to see electronic bundling utilised in some instances, which was both adeptly operated and positively received by the court. The court is, in general, committed to technological advancement and the time and cost savings these can achieve.

From the judicial perspective, it was clear how advantageously visual aids can be used to inform and influence the judge on the technical issues, manifold in TCC disputes. Plans, images and models were particularly well employed in openings to ensure that there was a good framework of technical understanding before the evidential stage. It was also impressive (and at times amusing) that there seemed to be no limit as to what could be brought into court as a “visual aid”. It ranged from small individual valves handed up to the judge to huge pipes requiring multiple lawyers to carry them into the courtroom.

It was also interesting to see the very active involvement of the judges in cost management at the CMC stage and beyond, particularly in the light of TeCSA’s recent consultation response advocating the exemption of all Rolls Building matters from the reach of mandatory cost management.

The judges spent a considerable amount of time interrogating costs budgets. This demonstrates the importance of ensuring that advocates (and not just instructing solicitors) at the hearing are comprehensively instructed as to the rationale behind each item on the proposed budget. In the absence of clear justification, the court will impose its own judgement on the appropriate time estimates and proposed resourcing, right down to the number of partner hours required to review a witness statement (notwithstanding TeCSA’s expressed view that the judges are not best placed to do this).

I would recommend the marshal scheme to any junior solicitor or barrister seeking insight into the presentation of construction disputes in the TCC. I observed everything from the sublime; watching Akenhead J deliver lengthy and reasoned judgments in situ, to the ridiculous; come mid-morning adjournment, the judges are not pampered with tea, biscuits and lounges as expected, but are left with a stool in an empty corridor without easy access to caffeine, food or bathrooms.

If you do get involved, be prepared to be impressed by the judges’ rationality and their ability to quickly grasp the complex technical detail inherent in TCC disputes, detail which the lawyers on the case have had months, if not years, to get to grips with.

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