Construction

Technology and Construction Court: Global Hub of Legal Expertise?

This short article offers a modest view as to whether the Technology and Construction Court (“TCC”) will remain a global hub of legal expertise in the medium-term.

The TCC ‘is a specialist court with specialist judges who deal with all types of construction, engineering and technology disputes both within the UK and which arise internationally.’[1]  Distinct challenges are posed by technology, foreign competition, and Brexit-related uncertainty.  If the TCC is currently a global hub of legal expertise because it has, thus far, successfully tackled these challenges, is there good reason to believe that it will continue to take on these challenges, and so remain a global hub of legal expertise?

“Global hub of legal expertise”

Last month saw the inaugural London International Disputes Week.  It aspired to ‘explore the future of international dispute resolution and celebrate the heritage of London as a leading centre for handling international disputes’.[2]  During this event, to the suggestion that ‘London is a global hub of legal expertise’, the head of the judiciary opined that “no objective observer would doubt that”.[3]  Certainly, the official website of the TCC does not doubt that the TCC is a global hub of legal expertise:[4]

Over the last 25 years there has been a substantial increase in the number of international cases brought in the TCC, with parties to construction and engineering contracts all over the world specifying the TCC as the court to resolve their disputes.

Technology and competition from other jurisdictions

Having noted that technology and competition from other jurisdictions pose distinct challenges, the Lord Chief Justice remained confident that “we will meet those challenges, that we will maintain our competitive edge as well as overcome any Brexit-related uncertainty.”

Strengths

Why?  First, “the fundamentals.”[5]  Expert and fiercely independent lawyers appear before an incorruptible judiciary.  Both professions are committed to the rule of law.  They operate within an accessible justice system.  Second, “the acknowledged expertise and standing of the judiciary.”[6]  Third, “willingness to innovate.”[7]  Judged by these strengths, then, can we have confidence that the TCC will continue to meet the challenges of the future, maintain, or even enhance its competitive edge in the international legal market?  What about overcoming the UK’s challenges, consequent upon the vote to leave the European Union?

“The fundamentals”

Judiciary

There is no cause for concern that “the fundamentals” underpinning the expertise of the TCC will change in the medium-term.  The commitment of judges sitting in the TCC to the rule of law is beyond question.

Judicial independence in the TCC should not be taken for granted.  There are other jurisdictions in the world where it has been argued that those sitting in judgment are not independent of political power.  Last month, the China International Commercial Court held its first public hearing.  In March this year, the president of China’s Supreme Court is reported to have ‘called for strict implementation of rules requiring judges to seek Communist leaders’ instructions when “major matters” arise’. The new China International Commercial Court ‘will borrow Supreme Court Judges’.  This is one reason that it has been argued that: ‘In the law courts of Communist China, power and political control count for more than fairness.’[8]

Recruitment of judges in the TCC, however, is not beyond question.  Although, there are other divisions of the High Court that are under more pressure:[9]

High Court, Circuit and Upper Tribunal judges in particular play a pivotal role in the justice system but currently more than 10% of High Court judicial positions remain vacant. As things stand the Chancery Division of the High Court is already 20% below strength and will be up to 40% below strength by the end of the year without urgent action.

Advocates

When you look across the bench, and consider those appearing before the judiciary, there has been ‘a remarkable sea change’ in recruitment and retention.  ‘Most of this change is to be applauded: best practice recruitment standards, quality and diversity, open discussion about historical gender and social inequality have all played a positive part’.[10]

Accordingly, the ‘fundamentals’ of the decision-makers, and those seeking to persuade them show no immediate cause for concern.  Both professions have real expertise, and are fiercely independent of government.

Accessible

One leading construction practitioner has marshalled two ways in which litigation in the TCC can be more accessible than arbitration.  First, availability:[11]

Although arbitrators may be similarly experienced, the availability of the most sought after arbitrators can lead to delays. In contrast there is always an experienced judge available to deal with any pressing interlocutory matters, and because there is effectively a team of judges, one of whom hears the matter finally, hearing dates will be set with the progress of the dispute, rather than the availability of the Tribunal, as a priority.

Second, costs: ‘Party costs are no more than would be incurred in arbitration, and the parties do not have to pay for the cost of one or three arbitrators.’[12]  The footnote to this sentence makes the point good: ‘Although the fee to commence litigation has just risen sharply, as it is capped at £10,000 it pales into insignificance compared with the fees paid to institutes or to arbitrators.’  It is intuitive that: ‘In an industry where cashflow is important, it is undesirable that parties should have to wait months or even years to have their disputes resolved.’[13]

“Acknowledged expertise and standing of the judiciary”

Official Referees Courts

The predecessor to the TCC were the ‘Official Referees Courts’.   In 1925, those that could qualify for appointment as an ‘Official Referee’ included: 1) ‘A practising barrister of not less than ten years’ standing’; 2) ‘A master, King’s Bench Division’; or 3) ‘A master in lunacy’.[14]  In 1956, county court judges were added.[15]  About half a century later, legislation prescribed that, after the appointed day, no person would be appointed to the office of Official Referee.  Circuit judges were to discharge the functions previously conferred on Official Referees.[16]

Technology and Construction Court

When the TCC was launched in 1998, despite addressing those sitting in it as “my lord”, ‘they remained circuit judges.’[17]  This ‘contributed to a lasting sense, present from the inception of the Official Referees, that they were of a somewhat uncertain status’.[18]

Today, a High Court Judge is in charge of the TCC.  Eight additional High Court Judges are nominated to hear TCC cases.[19]  Accordingly, since the office of Official Referee was created over a century and a half ago, without the power to give judgments, nor make orders as to costs,[20] the acknowledged expertise and standing of those hearing construction disputes can sensibly be argued to have increased.  And a ‘curious anomaly’ resolved:[21]

It became a curious anomaly that Official Referees came to try the longest and most difficult cases. The cases were difficult in terms of technical content and also difficult in terms of the legal problems which they threw up. The development of the law of tort was one matter of continuing legal difficulty, but the contractual disputes involving more than one party meant that the litigation being tried by the Official Referees was of greater difficulty than nearly all other cases tried in the Queen’s Bench Division.

“Willingness to innovate”

Technology and Construction Court in particular

In 1996, a pioneer in the emerging field of information technology and the law, and IT advisor to the Lord Chief Justice identified that the challenge ‘is to investigate and devise innovate techniques for the provision of legal information, guidance, knowledge, and expertise; to develop new ways of meeting clients’ needs’.[22]  A decade later, the Judge in Charge of the TCC demonstrated that there was willingness to innovate, through the creation of a new court, with a new constitution of judges:[23]

Over the last ten years the civil justice system has undergone a cataclysmic change … At a time of such far-reaching reform, even the Official Referees’ Courts (which have provided sterling service for over a century) could not remain untouchable. In 1998, they were transformed into the Technology and Construction Court and the long tradition that High Court judges played no part in their work was brought to an end.

Just over a decade later, this innovation has rightly been credited with success:[24]

The court has become noted for being truly modern in the service it provides, particularly to commercial litigants, and it is the very opposite of the fusty Edwardian caricature of the imagination. It is properly resourced. It sits in the Rolls Building (a marked improvement over the old St Dunstan’s House—happily consigned now to history!). Case management is grappled with early and effectively. Court dress is never worn, even for trials. And, striding out well ahead of any other part of the higher courts, it has achieved gender parity among its full time London judges: three women and three men. The modern face of the TCC judiciary is exemplified by Mrs Justice Carr, who also sits in the Commercial Court and Chancery Division (now Business and Property Court) sharing the best practices and ideas between these different courts.

Business and Property Courts in general

There is more.  Much more.  To give just a flavour, the Lord Chief Justice noted the following:[25] 1) introduction of new forms of procedure in the Business and Property Courts – of which the TCC is an important constituent – to enable parties to tailor proceedings to their needs, including shorter and / or more flexible processes; 2) a market test case procedure, providing a forum for guidance through precedent in the absence of a dispute between parties; 3) the LawTech Delivery Panel, considering the implications of developments elsewhere; 4) effective e-filing is now standard; 5) coding has been embraced by the courts as a means by which litigants can carry out the disclosure process accurately, speedily, and at much less cost; and 6) an Artificial Intelligence Advisory Panel, to advise the head of the judiciary on use of artificial intelligence to assist settlement, and aid decision-making.

Conclusions

On the basis of the above analysis, the modest view is proffered that the TCC will remain a global hub of legal expertise in (at least) the medium-term.  To date, it has faced two real challenges: technology; and competition.  The former has not proved insurmountable.  On the contrary, technology has been embraced, contributing (albeit, perhaps only in part) to the perception that foreign competition is no immediate cause for concern.

Those that sit in, and present submissions before the TCC have acknowledged expertise.  Both are independent.  And – crucially – the TCC is accessible.  Arguably more so (at least on occasion) than arbitration.

Perhaps the two most pressing challenges in the near- and medium-term are recruitment, and Brexit.  At present, the former poses less of a problem for the TCC than other divisions of the High Court, such as Chancery.  Brexit, however, is perhaps more of a concern for the TCC.   The Head of the Chancery Division has recently spoken of Brexit-related concerns in these terms:[26]

There is the question of how attractive the UK courts will be to international parties after Brexit, and also what effect Brexit may or may not have on London as a seat for international arbitrations after Brexit.  Then, there is the question of the enforcement of UK judgments in EU member states after Brexit.

[1] Courts and Tribunals Judiciary, ‘Courts of the Queen’s Bench Division: Technology and Construction Court: Work’.
[2] London International Disputes Week 2019, ‘Welcome to the International Disputes Week 2019’.
[3] Courts and Tribunals Judiciary, ‘Speech by the Lord Chief Justice: English Law on the World Stage’ (8 May 2019) (“Speech by the LCJ”) 2.
[4] Courts and Tribunals Judiciary, ‘Courts of the Queen’s Bench Division: Technology and Construction Court: History’.
[5] Speech by the LCJ 7.
[6] Speech by the LCJ 14.
[7] Speech by the LCJ 17.
[8] ‘China courts the world’, The Economist (8 June 2019) 59.
[9] Ministry of Justice, ‘Government acts urgently to protect judiciary recruitment’ (5 June 2019).
[10] Nick Rees, ‘Recruitment and talent management’ in David Barnes (ed), ‘The Independent Bar: Insights into a Unique Business Model’ (Globe Law and Business Ltd, 2018) 87.
[11] Adam Constable, ‘Keating on Offshore Construction Contracts’ (2nd edn, Sweet & Maxwell, 2018) 11-016.
[12] Ibid.
[13] Stephen Furst & Sir Vivian Ramsey, ‘Keating on Construction Contracts’ (10th edn, Sweet & Maxwell) 1-052.
[14] Administration of Justice Act 1925, sch 1.
[15] Administration of Justice Act 1956, s 10.
[16] Courts Act 1971 s 25.
[17] Michael Davis & Robert Akenhead QC, ‘Technology and Construction Court: Practice and Procedure’ (OUP, 2006) (“Practice and Procedure”) 1.38.
[18] Practice and Procedure 1.39.
[19] Courts and Tribunals Judiciary, ‘Courts of the Queen’s Bench Division: Technology and Construction Court: Judges’.
[20] Supreme Court of Judicature Act 1873 ss 57, 58, 83.
[21] Richard Wilmot-Smith, ‘Wilmot-Smith on Construction Contracts’ (3rd edn, OUP, 2014) 23.68.
[22] Richard Susskind, ‘The Future of Law: Facing the Challenges of Information Technology’ (OUP, 1996) 2.
[23] Jackson J in Practice and Procedure, Technology v.
[24] Ivor Collett, ‘Sir Rupert Jackson and the TCC’ (2018) 34(5) Const LJ 392, 393 (with emphasis added).
[25] Speech by the LCJ 17-22.
[26] Courts and Tribunals Judiciary, ‘The Future for the UK’s Jurisdiction and English Law after Brexit’ (13 May 2019) 3.

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