ORDER IN COURT
The Technology and Construction Courts (TCC), the specialist courts where most construction cases are tried, have a long and distinguished history. Until 1998 they were known as the Offi cial Referees' Courts, and were located in a far-flung corridor of the High Court that was so notoriously difficult to find that some construction litigation texts gave detailed directions for the newcomer, writes Kim Franklin.
The demands of complex construction litigation were such that the TCC judges introduced many of the casemanagement procedures that are now universally adopted to encourage cost-effective litigation. Experts' meetings, exchanges of witness statements and timetabling for trials were all instigated by the TCC.
Despite these streamlining initiatives, the courts were kept busy. After the landmark duty-of-care doctrine in Anns v Merton (1978), the owner of a defective building was able to claim against anyone who had so much as walked past the site during construction.
Huge, multi-party actions proliferated, and the work of the courts boomed. By 1984, the court lists were so congested that the delay between issue of writ and trial was something of a scandal, and the number of judges was increased to cope.
In 1988, these cases were moved to modern courts, and in 1998 they were given a new title, but neither of these measures could remedy what was seen by some as a problem that bedevilled the courts.
Construction disputes give rise to some of the most complex issues of fact and law.
The majority of the leading cases in the law of contract and tort are construction cases.
Trials typically last weeks, if not months, after which the judge is required to produce a case judgment of several hundreds of pages.
And yet TCC judges do not enjoy the coveted title of High Court judge. Why they have not been made High Court judges is a mystery to most, but it is believed to have put many suitable construction barristers off taking the job, which in turn has led to a decline in the TCC's reputation.
This, combined with a number of high-profile judicial blunders and the recent resignation of Judge Humphrey Lloyd QC, one of the courts' most senior and experienced judges, left users of the TCC in no doubt that something had to be done.
The Lord Chancellor has announced that plans are afoot for the long-term future of the courts. Interim changes have been introduced to increase the involvement of more High Court judges in the work of the TCC. Mr Justice Jackson, the judge in charge of the courts, will now be available full-time and five other High Court Judges will assist as necessary. While most cases will be heard by the remaining TCC judges, Coulson, Havery, Thornton, Toulmin and Wilcox, complex and heavy cases will now be allocated to a High Court judge.
The practicalities of this new regime will be spelt out in the forthcoming TCC Guide. These changes are to be welcomed by those who recognise the pressing need for a thriving system of specialist construction courts.