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Parties in the TCC: prepare for trial and to settle

Often parties engaged in proceedings want to park those proceedings while they turn their attention to alternative dispute resolution (ADR).

In some types of dispute, judges favour a stay for ADR. Indeed in any boundary, right of way or other neighbour dispute (as I discussed last month in relation to Norris J’s decision in Bradley v Heslin), whatever the parties might say about their willingness to engage in the process, they should expect a court-ordered two-month stay for mediation and a direction that all reasonable steps to conduct that mediation must be taken.

No stay or window for ADR in the TCC

However, in CIP Properties (AIPT) Ltd v Galliford Try Infrastructure Ltd,  Coulson J said that in the TCC ordinarily there would be no stay for ADR ordered or pause in the proceedings for ADR created by the fixing of a window in the timetable. Instead, parties in the TCC must do both: work towards a fixed trial date and attempt to settle the litigation.

As a result, Coulson J said that parties should expect a timetable with a fixed trial date that gives a reasonable period between each step in the process. This would give the parties sufficient time to take the step and also reflect and consider their positions before moving on to the next step and incurring the costs which go with doing so.

The reasoning the court gave for this is that:

  • Fixing the trial date is one of the critical elements of any CMC in the TCC. So, although the TCC “endeavours to facilitate the ADR process at each stage of the litigation”, it also requires there to be a cost-efficient and sensible timetable with a set trial date.
  • It is undesirable to fix a window that effectively halts the proceedings while the parties engage in ADR because this “inevitably delays the trial date by the period of the window”, which will “inevitably increase the costs of the case”. Indeed, Coulson J said:

“the fixing of any lengthy ‘window’, for purposes unconnected with the preparation for trial, is bad case management.”

  • Staying the whole proceedings to allow ADR or mediation to take place, is Coulson J said:

“an even worse option” because “it has all the disadvantages [of fixing a window] but, in addition, it can create uncertainties and the potential for tactical games-playing.”

Accordingly, no stay or fixed window will ordinarily be ordered in the TCC as it “is likely to lead to delay, extra cost and uncertainty”. Instead, parties should expect “a sensible timetable for trial that allows the parties to take part in ADR along the way”.

The TCC and ADR

Parties should not take the judgment in CIP Properties v Galliford Try as the TCC lessening its support for ADR.

Section 7 of the TCC Guide (which deals with ADR) states that although the TCC is an appropriate forum for the resolution of all IT and construction and engineering disputes, ADR can lead to significant cost savings and may result in a settlement and further that:

“Legal representatives in all TCC cases should ensure that their clients are fully aware of the benefits of ADR and that the use of ADR has been carefully considered prior to the first CMC.”

Also, just last month in Northrop v BAE (which was about an unreasonable refusal to mediate) Ramsey J underlined the TCC’s support and encouragement for ADR.

It is therefore not surprising that in CIP Properties v Galliford Try, Coulson J also emphasised that:

  • TCC judges “set great store by ADR”.
  • Construction disputes can be “time-consuming and therefore expensive to fight out in the traditional way… even if the court adopts all the various techniques for reducing the trial to a minimum (such as ‘hot-tubbing’ the experts and carefully timetabling the cross-examination)”.
  • TCC trials “are often unwieldy and cost-inefficient”.

He suggested that:

“A professional mediator, engaged at the right time in the process and in the right spirit of cooperation by the parties, will often be able to resolve the most intractable case and save everyone a good deal of money, time and effort.”

Coulson J also concluded by saying:

“…none of this is designed to undermine the importance of ADR, or the adverse costs consequences that may be visited on those parties who do not engage in that process (see for example Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576). It is simply to emphasise that parties must take all proper steps to settle the litigation whilst at the same time preparing the case for trial. It is not an either/or option.”

The Jackson ADR Handbook

It is worth highlighting that section 7 of the TCC Guide also states that parties are “advised” to refer to the Jackson ADR Handbook (which I have discussed previously).

Notably the handbook is also cited in PGF II SA v OMFS Company 1 Ltd (which I’ve also looked at), where the Court of Appeal expressly and firmly endorsed advice in it. Ramsey J also endorsed the handbook in Northrop v BAE.

Do you have a copy?

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