Practical Law

At the construction law and strategies conference on 12 April 2011, several leading lights in construction law gave talks. Among them was Akenhead J, the head of the TCC, who spoke about its history and its future. Akenhead J regularly talks to the construction industry. He is always keen to emphasise that, as a wholly High Court institution, the TCC is thriving, with five full time High Court Judges and a sixth being sought.

New “digs”

The court’s imminent relocation from St Dunstan’s House to the Rolls Building, conveniently also located on New Fetter Lane, was hailed with particular enthusiasm. The new building will house the Technology and Construction, Commercial and Chancery Courts. The theory being that with all the business courts located in one building, co-location will improve co-operation between the courts.

Another benefit of co-locating will be that the courts can liaise between themselves for available judge time to hear fast-track or time limited matters. Noting an earlier public procurement talk by Sarah Hannaford QC, this could benefit applications like procurement challenges that typically have very narrow time windows in which those challenges may be brought.

The Rolls Building has over 30 courtrooms, some small and ordinary, with three “super-courts” large enough to accommodate eight parties with all their lawyers, counsel and experts. All courtrooms will feature Wi-Fi and video conferencing facilities. As previously noted, in future there will be even fewer excuses for not converting to a wholly electronic process. Court administration will also move to the Rolls Building.

The international court of choice?

It is envisaged that the new business court will be an international showcase for legal business matters and for London.

Akenhead J commented that the TCC aims to be “the court of choice for all construction matters” and “the largest court in the world with specialist jurisdiction in technology and construction area”. He drew comparisons with the Commercial Court’s rise in international prominence as an international court of choice for commercial dispute resolution.

The TCC is seeing an increase in international work and is already on its way to becoming the international court of choice, being named more frequently in international contracts as the ultimate court for dispute resolution.

e-Disclosure

Echoing the views of Ramsey J, Akenhead J discussed how the TCC was looking at the options and methods available to help parties involved in e-disclosure exercises. Searching, duplicates and overwhelming numbers of documents, resulting in time wasted on irrelevant data, are typical issues in e-disclosure.

As an example, Akenhead J discussed an approach to e-disclosure ordered in a recent case. After each party had removed confidential and privileged documents from its own document database, it permitted the other party wide access to that database to perform its own searches. The parties agreed a protocol that privilege was not waived, should any privileged document turn up in any of the searches (although none did).

When asked about the practicalities of this, Akenhead J suggested that parties could use identification codes in data files at the time of creation to ensure that privileged documents could be identified and removed, should it be necessary to do so at a later time. However, in the fevered excitement at the outset of a project, parties pay little attention to the prospect of future disputes and operating such a system may be considered optimistic.

Pre-action protocol

Jackson LJ’s review of civil litigation costs recommended that the Pre-action protocol for construction and engineering disputes should be reviewed by judges, practitioners and court users after 2011.

In response to a question about the pre-action process, Akenhead J elaborated on this, suggesting that the Protocol may be abolished as an absolute pre-condition to starting a claim in a construction or engineering dispute. Instead, the case would be subject to the court’s directions under the “stewardship” of a judge. The idea was to improve case management and speed-up dispute resolution.

The  suggestion seemed to be that, in certain cases, the pre-action process may be better managed, in terms of time and costs, with more judicial control. It was not clear whether this was a view shared by all of the TCC judges, nor was there opportunity to address the obvious questions that this raises, such as:

• When would such a change take place?
• If the Protocol isn’t an “absolute pre-condition” what is the point of having it at all? Who will comply if they don’t need to?
• Will pre-action costs increase with more judicial intervention?
• Will there be more opportunities for an unco-operative party to delay the process by seeking the court’s involvement?

Adjudication enforcement after the LDEDC Act 2009

Several talks earlier in the day had discussed what the changes to the Construction Act 1996 being introduced by the LDEDC Act 2009 would mean for adjudication and adjudication enforcement in the TCC. Although Akenhead J did not have time to engage in any detailed discussion, he noted that the usual rules regarding contract formation, in terms of offer and acceptance, are likely to play a more significant role in decision making.

Any other business?

In addition to the few points highlighted here, Akenhead J took the opportunity to promote the likes of  e-working, early neutral evaluation (ENE), hot-tubbing and the court settlement process (CSP) as ways to maximise costs savings, the chances of early settlement and overall more effective case management. Our experience to date though, is that take up remains slow, perhaps due in part to parties’ lack of familiarity but also because of more legitimate concerns.