Practical Law

It’s just possible that, what with keeping up on the recent spate of adjudication enforcement decisions, and wondering whether Brexit would mean that English clubs can’t compete in Europe, you might have missed the fact that Briggs LJ is in the middle of conducting a comprehensive review of the civil courts structure (and the interim report is available online).

If you were diligent enough to have spotted this, you might nevertheless have thought it was mainly about introducing an “online court” for relatively modest claims and so not something a successful construction practitioner like yourself needed to worry about. However, hidden away on pages 100-102 (in the section on “The Future of the Divisions”) is the suggestion that the final report will consider the merger of the various Rolls Building divisions into one section, thereby potentially removing the Technology and Construction Court (TCC) as a distinct unit in the manner we currently know it.

I don’t think that this development would be welcomed in the construction industry and, if that is right, I think we need to be able to clearly articulate why we consider the TCC to be such a valuable resource and to make sure that Briggs LJ hears and understands our concerns.

Where are we up to?

Written responses on the interim report are due by the end of February (that is, now), with the review to be completed by July 2016, following further meetings from March to May.

The process is, on its own terms, being completed in something of a rush, so as to tie in with government spending reviews. As a consequence, save for some of the key proposals (such as the online court), the interim report addresses other possible reforms with a light touch (including the section, “The Future of the Divisions”). Nevertheless, it is tolerably clear that Briggs LJ’s working assumption is that his final report will contain a comprehensive recommendation as to how these should be structured (or re-structured) in the future.

The good news is that the interim report contains no recommendation, provisional or otherwise, as to if or how this should be done. The point, it seems, is still very much in play.

That said, Briggs LJ notes that previously two committees were set up to consider the issue (one in 1993 and another in 2011). Both recommended a form of merged civil or business and property division, labelled “the X Division”. (Incidentally, the earlier of the committees boasted Michael Briggs QC (as he then was), as a member.) The report notes that both proposals received either positive, or no adverse comment in the Woolf Report, but were not implemented.

My personal reading of this section in the interim report is that, while Briggs LJ is very much aware of the sensitivities involved and will retain an open mind on the issue, absent persuasion to the contrary he would be minded to recommend merger.

Why do we care?

Maybe you don’t. Perhaps you have no particular love for the TCC. Maybe you can’t forgive Random J for reducing your hourly rate on a cost budget, or never came to terms with leaving your beloved St Dunstan’s House.

Maybe, but I don’t think I am going out on a limb here (and this is a blog, so you get to tell me if I’m wrong) when I suggest that by and large the construction industry and construction lawyers are very pleased with the TCC.

It works. I mean, it actually works. More often than not, the TCC delivers justice by way of a comparatively cost effective (and certainly cost managed) process. We have judges of the highest calibre with real expertise and experience in the very area in which they are presiding. The profession trusts them. That allows us to provide better, more reliable advice, which allows clients to make better informed and cost effective decisions. The TCC Guide and the court’s general approach have both evolved to suit the nature of the cases they are hearing week in and week out.

To put it another way, while not perfect, the TCC basically runs exactly like the kind of court every review since Woolf has aspired towards.

I have the privilege of sitting on the TECBAR committee and helping them put together responses to the various consultations or proposals that ping their way around the judicial system on a depressingly regular basis. Time after time, I am faced with proposals that are designed to address a mischief that is simply not a real concern in the TCC. For example, the shorter trials scheme (STS) and the flexible trial scheme (FTS) pilots allow courts to provide more streamlined or bespoke directions for particular cases. I am all in favour of bespoke directions, but was this really a problem in the TCC? Weren’t we already used to debating at the CMC about the most suitable directions, whether full disclosure was necessary, or how to get the trial on quickly if it was a relatively small matter? Weren’t our judges already making case appropriate directions?

What should happen?

I think there are strong arguments for keeping the structure as it is and that would be my preference.

I recognise that there is a superficial attraction to merging all the divisions and procedures in the Rolls Building. At first blush it feels like a needlessly over-complicated landscape, navigable only by those in the know.

Also, it would be nice to have a lighter White Book as I move towards my dotage.

And yet, one has to ask whether the current set up works. I am convinced it does for the TCC, and I am told that in large part it does for the Commercial, Mercantile and Chancery sections. Briggs LJ’s interim report rightly notes the huge success of the Rolls Building in its current form, describing it as having “achieved a collective international pre-eminence as a business and property litigation centre”.

While the Rolls Building, like all courts, must be accessible to the general unrepresented public, these are, after all, business courts and the vast majority of the work is carried out by represented parties. The procedures should be developed with that in mind. There is an enormous benefit in allowing each area to develop its own procedural approaches and it is, in my view, this specialism that forms a large part of the TCC’s appeal. A top-down reform will not enhance the product, especially at a time when rising court fees and fast-track arbitration services already provide disincentives to using the court service.

I would be very interested to hear whether any of you agree. Are the different divisions in the Rolls Building an out-dated hindrance, used by lawyers to complicate the process, or do they provide valuable services allowing specialist litigation to be dealt with by specialist courts?