It's all change in the court
More than 100 years of history have recently been swept aside in the courts where construction and other technically complex cases are heard. Since the end of the last century, the judges who try construction cases have been known as 'Official Referees', so called because cases of technical complexity or detail were referred to them by the High Court.
Since their inception, the Official Referees have gradually developed their own specialised procedures best suited to construction litigation. In the 1920s His Honour Judge George Scott qc invented the infamous 'Scott Schedule', an essential pleading for cases involving many allegations of, for example, defective work, which reveals at a glance each party's comments and prices for each and every defect alleged: indispensable, undoubtedly, but still responsible for ruining many a young barrister's weekend. Cases were allocated to specific judges who ordered a timetable for preparation, tailor-made to suit the particular dispute.
The Official Referees were the first to require experts' reports to be exchanged before trial and later, in the 1980s, began to make orders that both parties' experts meet before they disclosed their reports. This enabled them to exchange views frankly before their positions had crystallised in writing and to reach agreement where sensible or appropriate. The judges also ordered that the evidence of witnesses of fact be disclosed in advance. Thus by the time the parties reached trial many of the technical or factual issues had been dispensed with and the judges were asked only to deal with the real meat of the case.
Despite these streamlining initiatives, the Official Referees were very busy. From the late 1970s, after Anns v Merton, when the House of Lords opened the floodgates for tortious actions against anyone involved in a construction project, and also reflecting the boom in the construction industry, the work of the Official Referees mushroomed.
In 1988 they moved from a corridor in the High Court, which was almost impossible to find (some specialist texts on construction litigation included detailed directions for the uninitiated), to modern courts in St Dunstan's House in Fetter Lane. The number of judges increased from three to seven, and they found themselves dealing increasingly with complex multi-million pound cases.
Many of the cases which form the foundations of our common law in contract, tort, professional negligence and damages are construction cases decided by Official Referees. In the early 1990s, the scope of their caseload was expanded further to include computer and information-technology disputes. Yet despite their increased workload and responsibility, the Official Referees remained a little-known specialist court, where the judges unfairly retained a status lower than that of their brother High Court judges. Most notably they were referred to as 'your honour' rather than 'my lord'. A change has long been thought to be overdue.
At the beginning of October, the Official Referees Court was re-launched as the Technology and Construction Court. This is part of a package of changes introduced by Mr Justice Dyson, a High Court judge who was well known as a construction silk in practice, now appointed to head up the work of the new-style courts. His vision is that the judges of the Technology and Construction Court will continue to lead from the front in innovations to improve access to justice in complex cases. Many of the details of the package remain to be worked through in conjunction with the large- scale reforms of court procedures proposed by Lord Woolf. For the time being, however, users of the new court should remember to address the judges as 'my lord' and not 'your honour'.