Laura Lintott is an attorney at the law firm of Watson Farley & Williams LLP
The Technology and Construction Court (TCC) is celebrating its 150th anniversaryth birthday this year Its history is a dynamic one, beginning with the Judiciary Act 1873, which changed the English court system from a duality of common law and equity to a single hierarchy of courts. He also created the office of Official Referees, which underwent a fascinating evolutionary process, eventually transforming into the TCC we know today. This process is relevant not only to those who are connected to the construction industry. It also had a ground-breaking impact on court case management in general. So which driver is under the creation of the office of official referees, who were they and what exactly did they do?
The past
The primary task of official arbitrators was to relieve the courts of the burden of document-heavy investigations and research. As the years and decades passed, they specialized in engineering, construction and technology cases. At the beginning of the office of Official Arbitrators, the law was silent on the issue of whether they had to be lawyers or not. More than fifty years later, the Supreme Court of Judicature (Consolidation) Act 1925 made it clear that official arbitrators must be lawyers.
To begin with, official referees did not receive the same treatment as judges, but it soon became clear that, in order to do their job efficiently, they deserved more powers and freedoms. This development finally culminated in the creation of the TCC in 1998. The office of official referees was, at the time, such an innovation that it bordered on scandal. Fear of the unknown, hence resistance to change, led to an initial reluctance to accept and give proper respect to official referees. Fortunately, official referees quickly demonstrated their value and how they could benefit society.
We must mention at least some of his innovations. Sir Francis Newbolt devised a scheme which aimed to improve case management to save time and money, encourage settlement before a case went to trial and establish a relationship between official arbitrators and lawyers appearing before them they. The scheme also ensured that official arbitrators had the necessary expertise to deal with construction, engineering and technology cases and introduced the idea of a single joint expert, among many other developments. Sir Francis’ vision laid the groundwork for significant case management reform. However, it took decades for his vision to be properly reproduced in Lord Woolf’s reforms.
George Scott, of course, is known for his Scott Schedule, which is used to summarize claims by setting out the items in dispute, their value, the description of the contract or works, the repair work and their cost . The calendar format with columns for the comments of the parties and the decision of the official arbitrators is widely used.
The present and the future
The TCC is now a specialist tribunal dealing mainly with construction, engineering and technology disputes. Cases range from claims for services provided by professionals (including engineers, architects and surveyors) to local authority duty claims, environmental, fire and arbitral award challenges.
The interpretation and application of the Housing Grants, Construction and Regeneration Act 1996 (subsequently amended by the Local Democracy, Economic Development and Construction Act 2009) became a central part of the TCC’s work. The role of the TCC in the development of adjudication jurisprudence is unique. Other more common matters dealt with by the TCC include enforcement, natural justice, insolvency or payment notices.
Because efficiency is the goal of the TCC, it requires that litigants comply with the Prior Action Protocol for Construction and Engineering Disputes before proceeding. The protocol is designed to prompt an early settlement before proceedings begin, whenever possible, or at least so that proceedings are efficiently managed if they become unavoidable.
The evolution of TCC continues to be as fast as ever. We live in the midst of a rapidly evolving maelstrom of technology and the TCC is open to continuous innovation. It has a market-tested procedure, a Lawtech delivery panel, efficient e-filing and uses coding to aid the disclosure process, all while saving time and money. It also has an advisory committee that supports the Chief Judiciary with AI to assist in resolution and decision-making. TCC’s practical approach to ensuring that case management saves time and costs is clear.
Official arbitrators brought with them a sober attitude to case management. Their expertise, which eventually focused on construction, engineering and technology, meant they became competent decision-makers who eventually became full-fledged judges at the TCC.
