Sitting in judgement
Lord Justice Dyson is the High Court judge appointed to take charge of the newly formed Technology and Construction Courts
''Official Referee' was a hopeless name. Everyone has known this for decades. The problem has been finding a title that aptly reflected the work done in the Official Referees' courts.' Mr Justice Dyson, the High Court judge in charge of the new Technology & Construction Courts (tcc) explains the thinking behind the re-launch of the post of Official Referee. They were created in 1883 as relatively lowly judges, to report upon matters involving detailed examination of documents, accounts or scientific investigation. In the intervening 100 years they have developed into judges who try complex actions, mainly construction and computer cases, involving difficult technical and legal issues and, more often than not, vast sums of money.
Despite this, however, the role of the Official Referees has not been widely understood, and they have been tucked away, geographically and metaphorically, in a specialist corner of the judicial system. Sir John, who practised at the bar in construction chambers and then as head of chambers doing more varied commercial work before his elevation to the High Court bench, is pleased that the Lord Chancellor and the Master of the Rolls now recognise that the traditional image of Official Referees counting tin tacks in carpet slippers is outmoded and they are keen to enhance the status of the judges of the new tccs.
To this end they have appointed Dyson as the first High Court judge to sit in the new courts and try construction cases. The existing judges are no longer to be addressed as 'your Honour' but instead will adopt the form of address for judges of the High Court - 'my Lord'. It seems, however, that despite constant lobbying from the users of the courts and the judges themselves, there are no plans to elevate them to the full status of High Court judges. This is to be regretted, not only because the tcc judges deal with cases of similar weight and complexity to those found in the commercial court and certainly deserve the title, but also because the want of status deters suitable candidates from accepting the job.
Dyson returns to construction work after five years as a High Court judge, frequently travelling away from London on circuit, trying a variety of work. How does he find the change? 'I did not like being away from home on circuit and welcomed any opportunity to sit in London. I am now to divide my time between tcc cases and more general High Court work, including judicial review. I want to try important construction cases, involving issues of general interest to the industry, without being caught up in protracted trials.'
Although Dyson would not quite describe his position as 'judicial heaven', he did feel that his predecessors were disadvantaged in overseeing the specialist courts without actually sitting there as a judge and appreciating how these challenging cases were handled. He has noticed other changes too. 'Only one of the present team of seven tcc judges was a judge when I was at the bar. The courts then enjoyed a rather cosy atmosphere: everyone knew each other. The pace of business was certainly brisker in other courts.'
He is at pains to point out, however, that he is not there to cause revolutions. The tcc judges, who were among the first to introduce case management and timetables for preparation with a fixed trial date, have developed procedures which ensure that potentially unwieldy litigation can be dealt with effectively. Although Dyson advocates increased standardisation as to the conduct of tcc business, he is wary of being over-rigid and wants to introduce changes by consensus. To this end he has changed the system of listing trials according to the availability of individual judges, which has given rise to anomalies in the time parties have had to wait for a trial date, and introduced a central listing system. He wants the courts to become even more high-tech than at present and, despite word from the commercial court that it was keen to deal with all disputes involving the 'millennium bug', he supports the tcc judges in their desire to increase their computer caseload.
Dyson also revealed another bee in his bonnet: 'The world has gone expert mad. It is one thing for an expert to produce a detailed report explaining why a bridge collapsed but nowadays, even in straightforward professional- negligence actions, the experts descend into the facts and write 80-page reports where eight pages would suffice.' The question of expert evidence, should, he believes, be addressed at an early stage in the preparation of the case, and the parties should be asked just what issues it is going to address.
And what of the hot topic of adjudication? He is waiting for the first disputed adjudicators' decisions to be referred to the tcc. 'It is just the sort of case I should try.' Although Dyson has been somewhat removed from the adjudication debate, he readily appreciates the intention behind the new process. Despite the criticisms of the hgcr Act, Dyson believes that it should be possible to sort out any problems, to preserve the intention of parliament and give the legislation a sensible business meaning. 'If that involves bold and innovative interpretations, then so be it.'