As Lord Dyson, MR reminded us in last month’s excellent Keating lecture, construction law and the TCC used to be perceived as:
“a rather dull specialist subject… all about boring Scott Schedules… and delay claims… known in the trade as ‘buggeration claims’.”
But to those of us who know and love this specialist area, we know it is so much more than just “boring Scott Schedules“.
Lord Dyson focused on how many leading cases that have influenced the development of the modern law of contract and tort had their roots in construction cases started and heard at first instance in the TCC. That got me thinking about how much the TCC has influenced modern case management and procedure in the courts, in a way that is rarely recognised by other litigation practice areas. It also got me thinking about how TeCSA, which celebrates its 25th anniversary this year, has played a consistently active role in that development.
Modern case management had its roots in the TCC
Modern case management had its roots in the TCC. For example:
- Those of you who have grown up with witness evidence being captured in witness statements, exchanged before trial and which stand as evidence in chief, without prejudice meetings between experts, and experts reports being exchanged may not realise that these basic tools of case management and procedure started in the TCC.
- It was also the first national specialist civil court to produce its own Guide, and one of the first courts to adopt a pre-action protocol. It remains the only protocol under the CPR that requires the parties to meet without prejudice at least once, to identify the main issues and root causes of their disagreement.
We are so used to the way the TCC operates that we often overlook the fact that it is virtually unique in that, for many years, all claims have had an assigned TCC judge who has primary responsibility for case and cost management of the claim from start to finish. TCC judges are, as we all know, extremely hands on, and there are occasions when, as practitioners, we might feel that cases are almost overly case managed!
As a TCC user for many years, I consider that we are extremely fortunate to have a national specialist court filled with extremely talented, experienced judges who have taken the lead in innovation in case management, to assist us in determining our disputes.
A more recent development in which TeCSA played a central role was the creation of the e-disclosure protocol. It was launched jointly by TeCSA, TECBAR and the Society of Computers and Law in November 2013 at a seminar in BLP’s offices.
The TCC adopted the e-disclosure protocol (on 1 January 2014) and it is reflected in the current TCC Guide (at paragraph 11.2.3). Edwards-Stuart J represented the TCC judges at its launch and instantly became an enthusiastic supporter, recognising that the experience of those “at the coal face” of e-disclosure was key to its success.
A year later version 0.2 was issued to reflect practitioners’ feedback (which Sara Paradisi discussed at the time). The current e-disclosure pack includes guidance, a checklist, a timeline and some wording for parties to agree with the other side in relation to e-disclosure. As an example of how the TCC is embracing new technology, interestingly, the guidance includes the suggestion that parties need to consider all possible sources of documents and data including social media (such as Twitter, Linkedin and Facebook).
While it isn’t mandatory to use the e-disclosure protocol, if the parties haven’t agreed by the first CMC a proposal relating to disclosure (including a broad estimate of the likely cost of disclosure), the TCC judges are likely to impose it at the first CMC.
Electronic working pilot scheme
And so to today.
As I write this blog the new electronic working pilot scheme is about to “go live” in the TCC. The TCC is leading the way for the Rolls Building with a pilot scheme for the electronic filing software, CE-File, for existing and new TCC claims from 27 April 2015. Details of the electronic working pilot scheme are included in new Practice Direction 51J (PD 51J).
The TCC started trialling the software in November 2014, but that only involved the scanning of paper documents. The present pilot scheme is much more comprehensive, involving the electronic issue of claim forms and applications, the payment of fees, and the electronic management of the court’s case file.
The advantages of electronic filing include:
- Issuing claims at any time, outside court opening hours, which should cut travel costs and time.
- Paying fees electronically, by HMCTS account or by credit card (although with the recent hike in court issue fees, care will need to be taken that the credit limit on the cards is high enough!).
- Getting an electronic receipt, which could be helpful for limitation purposes.
Of course, there are potential issues with electronic filing:
- It is not the first time that electronic filing has been trialled. The first trial, in 2010, which involved all of the courts in the Rolls Building (the TCC, the Commercial Court, the Admiralty, Commercial and Mercantile Courts, the Bankruptcy and Companies Courts) had to be shut down in 2012.
- The scheme is voluntary and as the take up rate was only 10% for the previous scheme, it remains to be seen how many people will participate in the new scheme.
- There is a ten megabyte data limit, which is likely to be a problem for everything but short claim forms (for example long witness statements and expert reports may well exceed that limit).
- The date on which the document is filed (the date of receipt, or the date that the administrative check is successfully carried out) is not completely clear.
- Trial bundles will still need to be submitted in paper form (although the court may order that they are submitted in electronic form too).
Let’s hope that this pilot scheme is a success, as it is due to be rolled out to the other courts in the Rolls Building in autumn 2015. TeCSA will keep the TCC informed of how practitioners are finding it and, if teething problems are to be ironed out anywhere, a pilot in the TCC is probably the best place to do it.
In addition to playing an active role in the civil litigation consultations and attending regular meetings with TCC judges to discuss issues raised by its members, what else does TeCSA do?
TeCSA seeks feedback from its members on issues such as the continuing use of the construction pre-action protocol and cost budgeting. It runs training on issues such as the basic principles of construction, how to build a stadium and how to build a skyscraper. It also operates a marshalling scheme, which allows junior lawyers to shadow TCC judges for one week (which Sally Kerridge took part in a couple of years ago). Other events include the annual TeCSA/TECBAR symposium and an annual adjudication conference.
But TeCSA is not all about rules, procedures and influencing the development of case management. It also has a very active social diary, aiming to provide opportunities for TCC users to meet with their peers in a more relaxed environment than sitting across from each other in court rooms. In addition to the annual dinner and the very popular summer party, TeCSA, TECBAR and the TCC judges also hold an annual cricket match, reflecting the fact that as practitioners in a small specialist area, we see the benefits of working hard, fighting hard and playing hard!
Hopefully many of you will join TeCSA at its summer party in the Sky Garden to mark its 25th anniversary. Let’s hope that the next 25 years prove to be as memorable as the last 25 years.
This article was first published by Practical Law Construction as part of our regular construction blog series in which we share our practical experiences of working in construction and engineering and give our opinion on the current and future legal developments that shape and will shape the industry. To read more from the series, visit the Practical Law blog.