We now have the revised TCC Guide, updated to ensure TCC practice is aligned with the CPR changes brought in as part of the Jackson reforms.
Through TeCSA, we were fortunate in that we had the opportunity to assist Edwards-Stuart J, Judge in Charge of the TCC, in updating the Guide. For those of you who haven’t yet taken a look, don’t expect anything radically different. I think the view was taken that “if it ain’t broke, don’t fix it”. The key driver for the update was simply to reflect the changes in procedure already in play in the TCC following the Jackson reforms, rather than remedying any perceived inadequacies in the existing version.
That said, personally I had always tended to prefer the look and feel of the Commercial Court Guide and the good news is the TCC Guide now has the same font, format and more detailed contents page as the Commercial Court Guide. A minor change but a welcome improvement for navigating what is a fairly lengthy tome.
So what are the main points of interest in the revised guide and what, if any, can be considered as missed opportunities?
The future of the Pre-Action Protocol for Construction and Engineering Disputes is uncertain as it remains the subject of a review led by Coulson J. For now at least, the Protocol continues to exist and it is hoped that the changes brought in go some way to addressing concerns that the pre-action process had simply become protracted and costly to no useful end. We are:
- Reminded that the letter of claim should be concise with only essential documents supplied.
- Told that the pre-action meeting is not mandatory and may be dispensed with where it is likely to incur disproportionate time or cost.
In addition, specific reference to Roundstone Nurseries v Stephenson Holdings provides reassurance that costs incurred as part of the protocol process can be recovered as costs of the action should litigation follow.
Perhaps one missed opportunity is that no provision has been made for pre-action intervention by the court where one of the parties has not complied with the Protocol. The position remains that the court will only get involved with such complaints post issue. Maybe this is a matter for the Civil Procedure Rules Committee (CPRC) as it probably requires a change to the Protocol itself and so may come out of Coulson J’s review.
One more wholesale change that could have been made would have been to redefine the section as “Pre-action” rather than “Pre-action Protocol”. This would have provided the opportunity to refer explicitly to disclosure obligations and suggest early use of the new e-disclosure protocol (see below) as part of the pre-action process. By all accounts, for complex construction disputes, shared discussions in relation to e-disclosure can prove too late if they are undertaken for the first time as part of preparation for the first CMC.
Case and cost management
The TCC Guide has taken on board the fact that the timings for the court fixing the first CMC (in paragraph 8.1, PD60) don’t work anymore post Jackson. The TCC Guide now provides that the first CMC will be fixed “sufficiently far ahead” to allow the parties time to deal with e-disclosure and cost budgets.
The Case Management Directions Form (in Appendix B) has been updated to cover the new disclosure menu options and use of the e-disclosure protocol. Our understanding is that the statement in the Guide that “Parties should note that the standard directions online are not always appropriate” simply means that parties should continue to use Appendix B as their starting point for directions rather than accessing the more general “standard directions” on the MOJ website.
The new thresholds for cost management are reflected in the TCC Guide but, be warned, you will not find the detail on cost budgeting requirements in the early parts of the Guide dealing with CMCs and so on. There is now a completely new sub-section dedicated to cost management, although it doesn’t feature until section 16, which is the section on Costs.
That said surely now there really can be no excuse for not understanding the importance of serving your cost budget on time. If somehow you had managed to miss the Mitchell case, the Guide now spells it out:
“The penalty for failure to serve a budget is Draconian: the party will be limited to recovering the court fees only (CPR 3.14), as applied by the Court of Appeal in Mitchell v News Group Newspapers.”
Arguably for the sake of completeness, perhaps the TCC Guide should have expressly dealt with the fact that cost budgets are not a requirement for Part 7 adjudication enforcement proceedings, the procedure for which is set out in section 9.
Jackson’s menu of disclosure options is now reflected in the TCC Guide and specific reference is made to the TeCSA/TECBAR e-disclosure protocol. Query though whether the opportunity should have been taken to expand further and provide additional disclosure guidance, given that this is often the most expensive and contentious aspect of construction litigation. At the very least it may have been helpful to have appended the e-disclosure protocol to the TCC Guide.
A welcome update
As this was very much a light touch revision arguably there are some missed opportunities. In particular, I would have quite liked to see a bit more along the lines of the useful guidance that appears in some of the appendices to the Commercial Court Guide. For example, the information on preparation of court bundles and drafting statements of case are helpful and can be easily accessed as appendices rather than in the body of the guide itself.
However, all in all, the TCC Guide retains its status as a helpful resource and of course remains essential reading for all those litigating in the TCC. While the changes may appear minor, as with any update to the court’s procedural guidance, you ignore it at your peril. The new version reflects the TCC’s working practices and it is imperative that you consult this newly revised edition when embarking on each stage of the litigation process or risk being caught out.