In a first for Construction Cast, we welcomed our first Lord, The Rt. Hon.Lord Justice Coulson, along with Laura Lintott of Watson Farley & Williams, and Dr David Sawtell, Barrister at 39 Essex Chambers. Between them, the panellists edited the soon-to-be-published book about the first 150 years of the Technology and Construction Court.
Last 30/40 years of the TCC
Annie started by discussing the recent history of the TCC with Lord Justice Peter Coulson. When he joined the TCC it was called the Official Referees Corridor. He recalls that all the judges were very good, far ahead of other circuit judges, and equal to some high court judges. Throughout his time, he has seen the quality continue to develop. (John Hicks, Sir Thayne Forbes). LJ Coulson’s arrival coincided with the arrival of Sir Rupert Jackson as the judge in charge and the TCC has continued to improve its reputation since then.
Origins of the Official Referees
Laura’s chapter of the book focuses on the history of the Official Referee (OR). Their establishment is a foundational milestone in construction law in the UK. Initially established to alleviate the court’s voluminous enquiries and investigations, their role was to focus on complex cases. Construction disputes are often defined by extensive detailed evidence or conflict of expert opinion.
This then developed into a focus on engineering, construction, and technological case. The dedication of the ORs to these construction-related cases then triggered an evolutionary process that saw the complex cases dealt with by the highest standards possible. Initially, the ORs were not treated on the same level as judges but were gradually given more power and responsibility as their roles became more established and they have now become a key part of disputes in the TCC.
The TCC has regularly been at the forefront of innovation. They were the first to introduce witness statements as standing evidence, a practice that is now used globally, saving time and money for everyone involved.
The TCC’s emphasis on the use of experts and them being obliged to meet and create a record of discussions, including agreements and disagreements, has also had major implications on court hearings and the production of evidence. Another way is their focus on targeting disclosure and their philosophy in approaching it.
David Sawtell believes that the changes made through the pandemic are more than likely here to stay. Some hearings being conducted remotely means that they can be processed faster. As a result, funds and resources can be managed more effectively. Faster processing means more disputes can find resolutions and projects reach a conclusion more quickly.
TCC & International Arbitration
Laura suggests that there are several reasons why contracting parties make the TCC their court of choice for their international construction and engineering disputes. Firstly, the practical approach of judges and their expertise in the fields of construction, engineering, and technology.
The TCC has a unique approach and professionally acclaimed standards making it a widely known court. Another reason for their positive reputation is their speed when dealing with disputes. As previously noted, fast hearings benefit all parties. The judge’s abilities in interpreting evidence and the independence of the judiciary and legal representation help to ensure fairness.
English arbitration has arguably affected things globally. This form of dispute resolution is very popular, especially for the resolution of construction disputes. The TCC supports the practice of arbitration, and this backing has encouraged the use of arbitration in other countries, particularly commonwealth countries. LJ Coulson is particularly proud of the TCC’s backing of adjudication as well as the TCC’s focus on public procurement.
Future of the TCC
To finish up Annie discussed the future of dispute resolution with Laura.
She predicts the further evolution of the adjudication process domestically, starting with the sober reform of the Arbitration Act 1996. Many things will affect the development of not only dispute resolution but also the TCC, such as rapidly developing technology, globalisation, and the continuing development of equality and anti-discrimination policies. Laura also mentions the continuously evolving environmental policies and focus on sustainability that will influence the cases presented to the court.
LJ Coulson believes the future of the TCC will involve far more focus on safety in developments. With recent cases already spiking in this field. He suggests there will be a significant focus on the effects of the Building Safety Act.
- The book is being published on 20th April 2023. – Pre-order here.
- Laura’s article – Is the TCC ideal for international construction disputes?
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