The wind of change has been blowing through the Technology and Construction Court (TCC) for some time now. Commentators have opined as to the causes, and practitioners have observed the consequences.
In the 1980s the TCC judges, then known as Official Referees, sat in an obscure corridor, high in one of the far-flung wings of the Royal Courts of Justice, trying complex technical disputes, most of them construction cases, much as they had done for the best part of 100 years.
At the time, the tide of tort was high and the construction judges were engaged on lengthy, multi-party trials.Would-be claimants had to wait up to two years for their turn.
Since then, the courts have had a change of name and address. The judges now include a High Court judge and all are addressed as if they enjoyed that status, with the title 'my Lord'.
But these developments are relatively superficial and would have made no real difference to the day-to-day business of the courts.
The altered landscape of the TCC has its causes in three developments in the world of dispute resolution, each of which has had a particular impact upon construction disputes:
1) the new Arbitration Act, which came into force in January 1997;
2) the Housing Grants, Construction and Regeneration Act 1996 and its attendant Scheme for Construction Contracts, which finally came into force in May 1998; and 3) the new Civil Procedure Rules (CPR), which were brought into effect in April l999.
This combination has caused the TCC to experience more changes to its workload over the past five years than it had in the preceding century, and this new legislation has caused a marked downturn in the volume of actions begun in the TCC.
The Arbitration Act now makes arbitration mandatory where a dispute arises out of a contract with an arbitration clause, including most standard forms of building contract. Under the JCT form, the parties can now opt for litigation but old habits die hard and arbitration is still favoured by the industry. The adjudication provisions of the Housing Grants Act have also disposed of a lot of business that would otherwise have ended up in the TCC.
Of course, the courts have been kept busy deciding whether adjudicators' decisions should be enforced, but such applications take hours compared with the days that would have been spent on a trial.
This double whammy has caused a 50 per cent drop in the number of cases begun in the TCC. Claimants starting an action now can expect a trial early in the new year. The new-found court availability, combined with the interventionist message of the CPR, has resulted in surprisingly brisk orders for trial preparation from the TCC. But this is not necessarily a good thing.
Complex construction disputes take time to prepare. A lot of work has to be done by lawyers who, if they are any good, have more than one case to attend to; and by experts who are also engaged on other matters; and by clients, who often have better things to do with their time than devote it to litigation.
Time is also required for the layers of the dispute to be unravelled, reflected upon and negotiated. Many construction litigation clients are not novices, and they are often represented by experienced practitioners who are better placed than most to decide how the dispute should unfold. Having rigorous timetables and early trial dates imposed upon them, irrespective of any agreement that they may have laboriously carved out between themselves, does not assist the process. In fact, ironically enough, some are so disillusioned with their experience of the new lean and mean TCC that they would rather go to arbitration, which would have been an unprecedented move a decade or so ago.
So where will the wind of change ultimately blow the TCC?
Moves are afoot within the Lord Chancellor's department to combine the TCC with the Commercial Court within a new building, specially equipped to cope with multinational, complex technical disputes and allowing for crossfertilisation between the two fields. Such a move can only be welcomed by those who believe that things cannot continue as they are.