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Arbitration brings massive change to culture once bent on litigation

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legal matters

Several anniversaries fall at about this time:

The new Civil Procedure Rules (cpr) celebrates their first birthday.

It is now two years since the adjudication and payment provisions of the Housing Grants, Construction and Regeneration Act were brought into force.

Susan Lindsey and I have had the privilege of scribing this column for you for two years now.

When considering a combined retrospective, analysing the influences of events over the last two years, I am struck by the scope of the changes.

The cpr have generally not been as bad as the dyed-in-the-wool practitioners feared. Their arrival may account for two particular phenomena: the empowering of the judges and the exodus from the courts.

To implement the cpr, district judges - the first-rung tribunals in the county court - were encouraged to take an active role incase management. District judges now feel empowered to step in and make decisions. Much of the bread-and-butter work of the county courts is now being pushed through more quickly, or seen off entirely. At the other end of the spectrum, however, higher tribunals have been more idiosyncratic in their interpretation of the cpr. In the Technology and Construction Courts (tcc), where case management has been the order of the day for some time, individual tcc judges have either carried on with business as usual or have called for new, far-reaching (and, frankly, rather demanding) ways of doing things. By not knowing which judge they will be allocated, litigants have been kept on their toes.

Or least they would have been, if they went to court at all. In fact, it seems that vast numbers of them now don't. The attraction of adjudication and other forms of alternative dispute resolution has combined with a grassroots move away from a contentious approach to contractual differences. This latter trend was described to me by an engineer as 'the feminising' of the industry: well, I have always thought that testosterone had a lot to do with it. But whatever the explanation, more and more disputing parties now seek to resolve their disputes rather than litigate them. Those disputes which do find their way to the tcc either concern an awful lot of money (I'm talking eight figures here) or a complex House of Lords point of law with general application to the entire industry. Where the run-of-the-mill type building dispute is taken to the tcc, the under- worked judge is able to give the parties a startlingly early trial date and is keen to order a short preparation programme, even in the face of their agreement to something more realistic. Instead of delighting the parties, they are in fact horrified by the notion that their agreed programme has been hijacked by the judge and that they must now cancel their holidays or lucrative business trips in order to attend upon their solicitors. Rather than be straitjacketed in this way, they move their dispute to arbitration, where they can implement the principle of party autonomy as enshrined in the 1996 Arbitration Act and where a more user- friendly time-table can be agreed and implemented.

I have witnessed these dramatic changes in the raw material of contractual conflicts, the legislation and court rules which shape them, and the final outcome over the last two years, from a professional view point which itself has been constantly changing. A year ago I moved from a traditional common law set of chambers where various members of chambers plied their various specialist trades, toa more streamline specialist set dealing with insurance-based construction disputes. Almost immediately we were swept up in the plans to merge with another sizeable well-established set with a similar client base. The merger has subsequently dominated chambers life. Every member has had some important role in ensuring the post-Easter launch of Crown Office Chambers. We have had to decide everything from the basis upon which the staff should be paid to the location of the pigeon-holes and how to present 71 names on a board (the traditional order of seniority has been rejected in favour of the more convenient but definitely radical alphabetical order). Whatever your perspective on all these changes, it's not over yet.

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