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Mythical hero returns to ensure ADR future is free from tragedy

legal matters

Mr Justice Jackson, recently appointed as the High Court Judge in charge of the Technology and Construction Court (TCC), has likened his return to construction law to the return of Odysseus from the siege of Troy. A return, incidentally, that he said was hampered by what might now be described as 'delay and disruption'. When one reflects that delay and disruption claims frequently involve the petty squabbles of minor deities; greedy, tunnel-visioned giants; supernatural weather conditions and the triumph of the human spirit against insurmountable odds, the analogy may not be so far-fetched.

Rupert Jackson QC enjoyed a prolific construction law practice at the Bar. His energy and capacity for work were legendary. Breaking from the long working day for 14 minutes to enjoy a pre-ordered three course bistro supper, with coffee, was, it seems, something of a luxury. Six years ago, Jackson was elevated to the High Court bench, since when he has tried criminal and judicial review cases. His departure from construction law coincided with some of the most important changes to have affected construction disputes, including:

l the introduction of the Civil Procedure Rules (CPR) putting greater emphasis on pre-action exchange of information and early settlement;

l the advent of adjudication and its subsequent successes (and failures);

l the increased use of mediation and alternative dispute resolution (ADR) to resolve construction claims; and l the decline of the traditional construction litigation in the TCC.

No wonder, then, that he now returns to find things much changed. Jackson reflected on these changes while addressing a packed joint meeting of members of the Society of Construction Law and the TCC specialist bar association, TECBAR.

Inevitably he considered the success of adjudication pointing to the fact that only a tiny proportion of adjudicators' decisions are challenged in the courts and that parties are now using the process to resolve more complex disputes than had been envisaged when the Construction Act was passed.

In this respect he issued a word of caution. Do not be lured, like Odysseus, to the land of the lotus eaters, to forever extending the adjudication timetable to accommodate the needs of a complex claim, incurring ever more costs for a decision that, ultimately, is non-binding. Jackson was clear in his view that adjudication was not intended for huge final account claims and complex allegations of professional negligence.

In response to a question from adjudication specialist Andrew Bartlett QC, he hinted that use of adjudication for such claims could in some cases be inherently unfair.

Having reflected on past developments, he turned to contemplate the future of the TCC, a topic of some concern to those court users.

He pointed out that the TCC now comprises 10 full-time judges, seven of whom sit in London, while about 50 other judges are qualified to try TCC cases on a full- or part-time basis at 12 different court centres around the country.

He recognised that this spread of resources can lead to widely divergent approaches to the management of cases and concluded that there was scope for a more harmonious overall approach.

Despite the popularity of adjudication and the success of mediation, the message from court users was that litigation is still a good thing if time and resources were contained within sensible limits. This message had, he said, been received and the TCC was now committed to managing every case in a fair and cost-efficient way and promptly producing quality judgments.

To give this statement some background, he announced that no TCC judgments were now outstanding for more than three months. He also expressed his view that the distinction between the High Court and the County Court, of which the TCC is part, should be abolished and that the judges of the TCC should, like other commercial court judges, enjoy High Court judge status.

No doubt, those in the audience who had hoped for tales of blood and gore from the new TCC judge were disappointed. Nevertheless, there was a general feeling that, much like his faithful hound Argos, they welcomed Odysseus' return.

Kim Franklin is a barrister and chartered arbitrator at Crown Office Chambers. Visit www.

crownofficechambers. com

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