On Friday, the latest version of the TCC Guide takes effect. The TCC has used the opportunity to set down a procedure that reflects where it wants to be when it takes its position as part of the new business court in the Rolls Building in 2011.
In terms of content, unsurprisingly, wherever possible the Guide adds its support to Jackson LJ’s recommendations in his costs’ report. More importantly, it unashamedly shouts out its own key messages:
- E-working. All parties should now be benefiting from the online case reader, the electronic court documents file. Issuing on paper should be a thing of the past.
- Hot tubbing. Parties’ experts should be willing and able to give their evidence to the court concurrently.
- ADR. Parties should be actively considering ADR options such as early neutral evaluation (ENE) and the court settlement process (CSP).
None of these messages are new. The difference is that the procedures are now in place to support them. In other words the TCC is now talking the talk. The question is, are the TCC’s users really ready to walk the walk? If not, why not? Is there anything to justify parties’ reluctance to take up these offerings?
It is hard to find reasons not to go down the electronic route. Teething troubles appear to have been remedied and there is little in the Guide that could be seen as off-putting. Quite the contrary, the Guide makes it seem as easy as ever. I am reminded of Ramsey J’s words when he likened the process to your first ever online flight booking. Once you have done it a few times, you never look back.
However, parties are not converting to electronic working. I asked the TCC Registry in London for some statistics. I was told that only 18 claims had been issued by e-working and none of those cases had gone on to use e-working to file documents. The Registry didn’t confirm whether this was since the start of the pilot, or from when the pilot became permanent in April. It seems that the judges are ready, the system is in place, but very few claims are being issued electronically. Even after the court staff have scanned documents onto the system (and continue to do so at every stage of the litigation), the parties have not converted over. Why is this?
What about the limitations of e-working? For example, the court is not ready for electronic bundles just yet, as section 3.8.7 notes:
“…there is no requirement for any hard copy documents to be filed with the court except… a hard copy case management bundle, bundle for any application and a trial bundle”.
Surely this is the obvious next stage. Parties should play ball and make use of e-working as it exists currently, not stubbornly wait for it to be an “all singing all dancing” system. But, should we be surprised by the low take-up of e-working when our own experience has often seen solicitors refuse to communicate by email, let alone accept service by email!
Given some of the obvious advantages in hearing from both experts together (as noted in the Guide itself), I anticipate that its uptake may be more notable than with e-working. Not least because, on the face of the Guide’s provisions, there seems to be nothing to stop the judge making an order for concurrent evidence even if the parties don’t agree.
What may put parties off hot tubbing is uncertainty over how it may operate in practice. The Guide offers no real answers to questions such as “Will a party lose its right to cross-examine?” and suggests that it will be a matter to be bottomed out at the PTR and, ultimately, something that will be decided by the judge.
The Guide has beefed up its ENE provisions but, given the well publicised low take-up of ENE, it’s not known whether this was in response to feedback from users. It is hard to predict whether ENE will become more popular as a result of the changes.
The new ENE provisions do not really address the deterrents to using this form of dispute resolution. It is arguable that the amount of preparation required for an evaluation reduces its potential to save time and costs, and ENE is never going to be attractive to a party who knows it has the weaker case; it would fare better in mediation or negotiation.
The CSP was hailed a success at the end of the pilot scheme (14 out of 18 cases during the pilot were settled), but no statistics were provided in the last TCC annual report. The King’s College survey, while acknowledging it as an effective means of dispute resolution (and one that was likely to be cheaper than private mediation), noted the lack of appetite for it amongst parties to construction disputes. Despite this, the TCC is keen and plans to extend it to the regional TCC centres. This is one area where practice is yet to catch up. Parties like the control they have over the mediation process. It is hard to see how including the CSP in the Guide will increase its popularity.
On the plus side, the Guide has clarified that it may be possible to use ENE and the CSP before proceedings are issued.
A new era?
The Guide shouts for a new era but, as things stand, it may be more of a whisper.