There have been a number of changes at the Technology and Construction Court (TCC). Jeremy Glover writes more.
In September 2004, Mr Justice Jackson replaced Mr Justice Forbes as Head of the TCC. In May of this year, HHJ LLoyd QC retired from the bench to concentrate on arbitration matters. In July 2004, Peter Coulson QC, formerly of Keating Chambers, was appointed judge at the TCC.
However, there are more fundamental changes in the pipeline. On 7 June 2005, Lord Chief Justice Woolf issued a Practice Direction setting out new interim arrangements for the management of cases in the TCC. The Practice Direction sets out potentially significant changes. Although recognising the fact that TCC judges try many arduous and complex cases and show a high degree of expertise in the management and trial of these, the Lord Chief Justice noted the lack of involvement of High Court judges in the work of the TCC. He said that this had been a source of concern within the construction (and IT) industries.
Whilst noting that the longer-term future of the TCC is currently under discussion, the Lord Chief Justice set out the following interim provisions:
- Mr Justice Jackson, currently in charge of the TCC, who was previously required to spend half of each term away from the Construction Court, will now be principally based at the TCC and will only sit in other courts when there is no TCC work requiring the immediate involvement of a High Court judge; and
- The judge in charge of the TCC will consider every new case which is started in or transferred into the London TCC. The most complex and heavy cases will be classified “HCJ”, which means that these will be managed and tried either by the judge in charge of the TCC or by another suitable High Court judge. However, it is envisaged that the majority of the cases will be classified “SCJ”. These cases will be allocated to a named Senior Circuit judge by operation of the rota. The Senior Circuit judges will be those Judges who are currently working at the TCC.
This new measure only affects cases started in London.
The panel of High Court judges will be Mr Justice Christopher Clarke, Mr Justice Elias, Mr Justice Field, Mr Justice Ouseley and Mr Justice Simon. Of these, Mr Justice Clarke is probably the best known, being counsel to the Saville Inquiry into “Bloody Sunday” deaths, before joining the judiciary in December.
At this stage it is difficult to predict exactly what effect these changes will bring to the court. A new Guide to Practice in the TCC is currently being finalised. It is due to take effect from 3 October come out in autumn 2005. This will provide further details of the proposed differentiation between “HCJ” and “SCJ” cases.
The Guide is more detailed than its predecessor in a number of areas. For example, in relation to adjudication the old guide, which dated from 2001, merely referred to the guidance in Outwing. Section 9 of the new guide is far more comprehensive. The aim of the Guide in the words of Judge Thornton is to a “ensure speed, economy and ease of use”.
Judge Thornton also, in an article which appeared in Building Magazine on 5 August 2005, said that:
“The TCC judges intend in future to take a more active stance in keeping costs to a minimum. To that end, they will be using their powers to cap costs, to assess costs summarily and to adapt court procedures in line with the overriding objective of controlling the expense of TCC litigation. The court is to revisit the pre-action protocol to see whether the procedure can be simplified and whether the cost of implementing it can be reduced. This is a much-valued process that requires parties, before embarking on TCC cases, to attempt to negotiate a settlement to their disputes by using a structured negotiation procedure.”
To be fair, this approach, which is clearly to be welcomed, is already apparent from the judgments coming out of the TCC.
There is one other new directive, and this relates to experts. In June 2005, the Civil Justice Council launched its Protocol for the Instruction of Experts to give Evidence in Civil Claims. It will apply to any steps taken for the purpose of civil proceedings by experts or those who instruct them on or after 5 September 2005. Until now, the CJC, set up as a government body as one of the recommendations of the Woolf Report, had had little impact on construction cases, but this protocol is likely to acquire a status rather greater than any previous codes and protocols, which it is designed to replace. It is not a Pre-action Protocol carrying with the format weight of CPR, but possible sanctions for non-compliance may well be comparable.
The aims of the Protocol as set out in section 2 are as follows:
“This Protocol offers guidance to experts and to those instructing them in the interpretation of and compliance with Part 35 of the Civil Procedure Rules (CPR 35) and its associated Practice Direction (PD 35) and to further the objectives of the Civil Procedure Rules in general. It is intended to assist in the interpretation of those provisions in the interests of good practice, but it does not replace them. It sets out standards for the use of experts and the conduct of experts and those who instruct them. The existence of this Protocol does not remove the need for experts and those who instruct them to be familiar with CPR35 and PD35.”
Whilst in essence the Guide restates the principles with which all experts will be familiar, every expert, particularly if involved in a case which is heading for court, would be well advised to ensure that they are familiar with the Protocol.
Those principles were recently restated in the case of Great Eastern Hotel Ltd v John Laing Construction Ltd which demonstrated just how important it is that an expert understands and complies with the primary duty he owes to the court. Judge Wilcox here found that one of the experts had failed to understand that duty.
An expert must thoroughly research all the evidence available to him. What he should not do is uncritically accept the evidence put forward on behalf of those instructing him. This is particularly the case when the experts on the other side put forward evidence that challenges and contradicts that picture. In such circumstances an expert must revisit his earlier expressed views in accordance with his clear duty to the court.
Judge Wilcox made it clear that the court is looking for an expert who bases his conclusions upon sound and thorough research, who has extensive practical experience in the discipline he is claiming expertise in (and it helps if he has relevant experience of operating under similar contractual provisions as exist in the particular case) and who is prepared to make concessions when his independent view of the evidence warrants it.