SECOND EDITION OF THE TECHNOLOGY AND CONSTRUCTION COURT GUIDE
(issued 3rd October 2005, revised with effect from1st October 2007)

Index

Section 2 Pre-Action Protocol

Section 3 Commencement and Transfer

Section 4 Access to the Court

Section 5 Case Management and the First CMC

Section 6 Applications after the first CMC

Section 7 ADR

Section 8 Preliminary Issues

Section 9 Adjudication Business

Section 10 Arbitration

Section 11 Disclosure

Section 12 Witness Statements and Factual Evidence for use at trial

Section 13 Expert Evidence

Section 14 The Pre-Trial Review

Section 15 The Trial

Section 16 Costs

Section 17 Enforcement

Section 18 The TCC Judge as Arbitrator

Appendices

Appendix A Case management information sheet

Appendix B Case management directions form

Appendix C Pre-trial review questionnaire

Appendix D Contact details for courts dealing with TCC claims

Appendix E Draft ADR Order

Appendix F Draft directions order in adjudication enforcement proceedings

The Civil Procedure Rules [http://www.dca.gov.uk/civil/procrules_fin/index.htm]

EXPLANATORY NOTE: This First Revision of the Second Edition of the TCC Guide makes the following changes:

The contact details in Appendix D have been updated.
Some minor inconsistencies in the provisions re time limits have been corrected.
Paragraphs 2.1.3 and 2.4.2 have been revised to reflect amendments to the Pre-Action Protocol.
Paragraphs 3.7.3 and 5.7.1 have been amended in the light of comments made by court users.
Reference to the new Protocol re Provisional Bookings has been added to paragraph 3.7.4.
Paragraph 4.5.5 has been deleted and paragraph 4.8.1 has been added in relation to lodging of documents.
A sentence has been added to paragraph 5.2.1 to deal with the problem of fixing the first case management conference in multi-party cases.
Paragraph 10.4.1 has been amended to reflect a recent decision.

Section 1.

Introduction

1.1 Purpose of Guide

1.1.1 This new edition of the Technology and Construction Court (“TCC”) Guide is intended to provide straightforward, practical guidance to the conduct of litigation in the TCC. Whilst it is intended to be comprehensive, it naturally concentrates on the most important aspects of such litigation. It therefore cannot cover all the procedural points that may arise. It does, however, describe the main elements of the practice that is likely to be followed in most TCC cases.

1.1.2 The Guide reflects the flexible framework within which litigation in the TCC is habitually conducted. The requirements set out in the Guide are designed to ensure effective management of proceedings in the TCC. It must always be remembered that, if parties fail to comply with these requirements, the court may impose sanctions including orders for costs.

1.1.3 In respect of those procedural areas for which specific provision is not made in this Guide, the parties, together with their advisors, will be expected to act reasonably and in accordance with both the spirit of the Guide and the overriding objective at CPR Rule 1.1

1.1.4 It is not the function of the Guide to summarise the Civil Procedure Rules (“the CPR”), and it should not be regarded as a substitute for the CPR. The parties and their advisors are expected to familiarise themselves with the CPR and, in particular, to understand the importance of the “overriding objective” of the CPR. The TCC endeavours to ensure that all its cases are dealt with justly and with proper proportionality. This includes ensuring that the parties are on an equal footing; taking all practicable steps to save expenditure; dealing with the dispute in ways which are proportionate to the size of the claim and cross-claim and the importance of the case to the parties; and managing the case throughout in a way that takes proper account of its complexity and the different financial positions of the parties. The court will also endeavour to ensure expedition, and to allot to each case an appropriate share of the court’s resources.

1.1.5 This new edition of the TCC Guide has been prepared in consultation with the judges of the TCC in London, Cardiff, Birmingham, Manchester and Leeds, and with the advice and support of TECBAR, TeCSA, the Society for Computers and Law and the TCC Users’ Committees in London, Cardiff, Birmingham, Manchester, Liverpool and Leeds. The TCC Guide is published with the approval of the Head of Civil Justice and the deputy Head of Civil Justice.

1.2 The CPR

1.2.1 Proceedings in the TCC are governed by the CPR and the supplementary Practice Directions. CPR Part 60 and its associated Practice Direction deal specifically with the practice and procedure of the TCC.

1.2.2 Other parts of the CPR that frequently arise in TCC cases include Part 8 (Alternative Procedure for Claims); Parts 12 and 13 (Default Judgment and Setting Aside); Part 17 (Amendments); Part 20 (Counterclaims and Other Additional Claims); Part 24 (Summary Judgment); Part 25 (Interim Remedies and Security for Costs); Part 26 (Case Management); Part 32 (Evidence); Part 35 (Experts and Assessors) and Part 62 (Arbitration Claims).

1.3 The TCC

1.3.1 What are TCC Claims? CPR Rules 60.1 (2) and (3) provide that a TCC claim is a claim which (i) involves technically complex issues or questions (or for which trial by a TCC judge is desirable) and (ii) has been issued in or transferred into the TCC specialist list. Paragraph 2.1 of the TCC Practice Direction identifies the following as examples of the types of claim which it may be appropriate to bring as TCC claims –

building or other construction disputes, including claims for the enforcement of the decisions of adjudicators under the Housing Grants, Construction and Regeneration Act 1996;
engineering disputes;
claims by and against engineers, architects, surveyors, accountants and other specialised advisors relating to the services they provide;
claims by and against local authorities relating to their statutory duties concerning the development of land or the construction of buildings;
claims relating to the design, supply and installation of computers, computer software and related network systems;
claims relating to the quality of goods sold or hired, and work done, materials supplied or services rendered;
claims between landlord and tenant for breach of a repairing covenant;
claims between neighbours, owners and occupiers of land in trespass, nuisance, etc.
claims relating to the environment (for example, pollution cases);
claims arising out of fires;
claims involving taking of accounts where these are complicated; and
challenges to decisions of arbitrators in construction and engineering disputes including applications for permission to appeal and appeals.

It should be noted that this list is not exhaustive and other types of claim may well be appropriate for the TCC.

1.3.2 The Court. Both the High Court and the county courts deal with TCC business. Circuit judges and recorders only have jurisdiction to manage and try TCC cases if they have been nominated by the Lord Chancellor pursuant to section 68 (1) (a) of the Supreme Court Act 1981. It should be noted that those circuit judges who have been nominated pursuant to section 68 (1) of the Supreme Court Act 1981 fall into two categories: “full time” TCC judges and “part time” TCC judges. “Full time” TCC judges spend most of their time dealing with TCC business, although they will do other work when there is no TCC business requiring their immediate attention. “Part time” TCC judges are circuit judges who are only available to sit in the TCC for part of their time. They have substantial responsibilities outside the TCC.

In respect of a court centre where there is no full time TCC judge, the term “principal TCC judge” is used in this Guide to denote the circuit judge who has principal responsibility for TCC work.

The phrase “Technology and Construction Court” or “TCC” or “the court” is used in this Guide to denote any court which deals with TCC claims. All of the courts which deal with TCC claims form a composite group of courts. When those courts are dealing with TCC business, CPR Part 60, its accompanying Practice Direction and this Guide govern the procedures of those courts. The High Court judge in charge of the TCC (“the Judge in Charge”), although based principally in London, has overall responsibility for the judicial supervision of TCC business in those courts.

1.3.3 The TCC in London. The principal centre for TCC work is the High Court in London at St Dunstan’s House, 133-137 Fetter Lane, London, EC4A 1HD. The Judge in Charge of the TCC sits principally at St Dunstan’s House together with five full time TCC judges. Subject to paragraph 3.7.1 below, any communication or enquiry concerning a TCC case, which is proceeding at St Dunstan’s House, should be directed to the clerk of the judge who is assigned to that case. The various contact details for the judges’ clerks are set out in Appendix D .

The TCC judges who are based at St Dunstan’s House will, when appropriate, sit at court centres outside London.

TCC county court cases in London are brought in (or transferred to) the Central London Civil Justice Centre, 13-14 Park Crescent, London W1N 4HT.

1.3.4 District Registries. TCC claims can be brought in the High Court outside London in any District Registry, although the Practice Direction states that it is preferable that, wherever possible, such claims should be issued in one of the following District Registries: Birmingham, Bristol, Cardiff, Chester, Exeter, Leeds, Liverpool, Newcastle, Nottingham and Salford (Manchester). There are full-time TCC Judges in Birmingham, Liverpool and Salford (Manchester). Contact details are again set out in Appendix D . There are part time TCC judges and/or recorders nominated to deal with TCC business available at most court centres throughout England and Wales.

In a number of regions a “TCC liaison district judge” has been appointed. It is the function of the TCC liaison district judge:

To keep other district judges in that region well informed about the role and remit of the TCC (in order that appropriate cases may be transferred to the TCC at an early, rather than late, stage).
To deal with any queries from colleagues concerning the TCC or cases which might merit transfer to the TCC.
To deal with any subsidiary matter which a TCC judge directs should be determined by a district judge pursuant to rule 60.1 (5) (b) (ii).
To deal with urgent applications in TCC cases pursuant to paragraph 7.2 of the Practice Direction (i.e. no TCC judge is available and the matter is of a kind that falls within the district judge’s jurisdiction).

1.3.5 County Courts outside London. TCC claims may also be brought in those county courts which are specified in the Part 60 Practice Direction. The specified county courts are: Birmingham, Bristol, Cardiff, Chester, Exeter, Leeds, Liverpool, Newcastle, Nottingham and Salford (Manchester). Contact details are again set out in Appendix D .

Where TCC proceedings are brought in a county court, statements of case and applications should be headed:

“In the … County Court

Technology and Construction Court”

This heading is important because in TCC cases (subject to the limited exceptions mentioned in paragraph 1.3.4 above) district judges do not have jurisdiction to hear applications or make orders.

1.3.6 The division between High Court and county court TCC cases. As a general rule TCC claims for more than £50,000 are brought in the High Court, whilst claims for lower sums are brought in the county court. However, this is not a rigid dividing line. The monetary threshold for High Court TCC claims tends to be higher in London than in the regions. Regard must also be had to the complexity of the case and all other circumstances. Arbitration claims and claims to enforce or challenge adjudicators’ awards are generally (but not invariably) brought in the High Court. The scale of fees differs in the High Court and the county court. This is a factor which should be borne in mind in borderline cases.

1.4 The TCC Users’ Committees

1.4.1 The continuing ability of the TCC to meet the changing needs of all those involved in TCC litigation depends in large part upon a close working relationship between the TCC and its users.

1.4.2 London. The Judge in Charge chairs two meetings a year of the London TCC Users’ Committee. The judge’s clerk acts as secretary to the Committee and takes the minutes of meetings. That Committee is made up of representatives of the London TCC judges, the barristers and solicitors who regularly use the Court, the professional bodies, such as architects, engineers and arbitrators, whose members are affected by the decisions of the Court, and representatives of both employers and contractors’ groups.

1.4.3 Outside London. There are similar meetings of TCC Users’ Committees in Birmingham, Salford (Manchester), Liverpool, Cardiff and Leeds. Each Users’ Committee is chaired by the full time TCC judge or the principal TCC judge in that location.

1.4.4 The TCC regards these channels of communication as extremely important and all those who are concerned with the work of the Court are encouraged to make full use of these meetings. Any suggestions or other correspondence raising matters for consideration by the Users’ Committee should, in the first instance, be addressed to the clerk to the Judge in Charge at St. Dunstan’s House or to the clerk to the appropriate TCC judge outside London.

1.5 Specialist Associations

1.5.1 There are a number of associations of legal representatives which are represented on the Users’ Committees and which also liaise closely with the Court. These contacts ensure that the Court remains responsive to the opinions and requirements of the professional users of the Court.

1.5.2 The relevant professional organisations are the TCC Bar Association (“TECBAR”) and the TCC Solicitors Association (“TeCSA”). Details of the relevant contacts at these organisations are set out on their respective websites, namely www.tecbar.org and www.tecsa.org.

Section 2.

Pre-Action Protocol

2.1: Introduction

2.1.1 There is a Pre-Action Protocol for Construction and Engineering Disputes. Where the dispute involves a claim against architects, engineers or quantity surveyors, this Protocol prevails over the Professional Negligence Pre-Action Protocol: see paragraph 1.1 of the Protocol for Construction and Engineering Disputes and paragraph A.1 of the Professional Negligence Pre-Action Protocol. The current version of the Construction and Engineering Pre-Action Protocol (“the Protocol”) is set out in volume 1 of the White Book at section C.

2.1.2 The purpose of the Protocol is to encourage the frank and early exchange of information about the prospective claim and any defence to it; to enable parties to avoid litigation by agreeing a settlement of the claim before the commencement of proceedings; and to support the efficient management of proceedings where litigation cannot be avoided.

2.1.3 Proportionality. The overriding objective (CPR rule 1.1) applies to the pre-action period. The Protocol must not be used as a tactical device to secure advantage for one party or to generate unnecessary costs. In lower value TCC claims (such as those likely to proceed in the county court), the letter of claim and the response should be simple and the costs of both sides should be kept to a modest level. In all cases the costs incurred at the Protocol stage should be proportionate to the complexity of the case and the amount of money which is at stake. The Protocol does not impose a requirement on the parties to marshal and disclose all the supporting details and evidence that may ultimately be required if the case proceeds to litigation.

2.2 To Which Claims Does The Protocol Apply?

2.2.1 The court will expect all parties to have complied in substance with the provisions of the Protocol in all construction and engineering disputes. The only exceptions to this are identified in paragraph 2.3 below.

2.2.2 The court regards the Protocol as setting out normal and reasonable pre-action conduct. Accordingly, whilst the Protocol is not mandatory for a number of the claims noted by way of example in paragraph 1.3.1 above, such as computer cases or dilapidations claims, the court would, in the absence of a specific reason to the contrary, expect the Protocol generally to be followed in such cases prior to the commencement of proceedings in the TCC.

2.3 What Are The Exceptions ?

2.3.1 A claimant does not have to comply with the Protocol if his claim:

is to enforce the decision of an adjudicator;
includes a claim for interim injunctive relief;
will be the subject of a claim for summary judgment pursuant to Part 24 of the CPR; or
relates to the same or substantially the same issues as have been the subject of a recent adjudication or some other formal alternative dispute resolution procedure.

2.3.2 In addition, a claimant need not comply with any part of the Protocol if, by so doing, his claim may become time-barred under the Limitation Act 1980. In those circumstances, a claimant should commence proceedings without complying with the Protocol and must, at the same time, apply for specific directions as to the timetable and form of procedure to be adopted. The court may order a stay of those proceedings pending completion of the steps set out in the Protocol.

2.4 What Are The Essential Ingredients Of The Protocol ?

2.4.1 The Letter of Claim. The letter of claim must comply with Section 3 of the Protocol. Amongst other things, it must contain a clear summary of the facts on which each claim is based; the basis on which each claim is made; and details of the relief claimed, including a breakdown showing how any damages have been quantified. The claimant must also provide the names of experts already instructed and on whom he intends to rely.

2.4.2 The Defendant’s Response. The defendant has 14 days to acknowledge the letter of claim and 28 days (from receipt of the letter of claim) either to take any jurisdiction objection or to respond in substance to the letter of claim. Paragraph 4.3.1 of the Protocol enables the parties to agree an extension of the 28 day period up to a maximum of 3 months. In any case of substance it is quite usual for an extension of time to be agreed for the defendant’s response. The letter of response must comply with section 4 of the Protocol. Amongst other things, it must state which claims are accepted, which claims are rejected and on what basis. It must set out any counterclaim to be advanced by the defendant. The defendant should also provide the names of experts who have been instructed and on whom he intends to rely. If the defendant fails either to acknowledge or to respond to the letter of claim in time, the claimant is entitled to commence proceedings.

2.4.3 Pre-action Meeting. The Construction and Engineering Protocol is the only Protocol under the CPR that generally requires the parties to meet, without prejudice, at least once, in order to identify the main issues and the root causes of their disagreement on those issues. The purpose of the meeting is to see whether, and if so how, those issues might be resolved without recourse to litigation or, if litigation is unavoidable, what steps should be taken to ensure that it is conducted in accordance with the overriding objective. At or as a result of the meeting, the parties should consider whether some form of alternative dispute resolution (“ADR”) would be more suitable than litigation and if so, they should endeavour to agree which form of ADR to adopt. Although the meeting is “without prejudice”, any party who attended the meeting is at liberty to disclose to the Court at a later stage that the meeting took place; who attended and who refused to attend, together with the grounds for their refusal; and any agreements concluded between the parties.

2.5 What Happens To The Material Generated By The Protocol?

2.5.1 The letter of claim, the defendant’s response, and the information relating to attendance (or otherwise) at the meeting are not confidential or ‘without prejudice’ and can therefore be referred to by the parties in any subsequent litigation. The detail of any discussion at the meeting(s) and/or any note of the meeting cannot be referred to the court unless all parties agree.

2.5.2 Normally the parties should include in the bundle for the first case management conference: (a) the letter of claim, (b) the response, and (c) any agreed note of the pre-action meeting: see Section 5 below. The documents attached to or enclosed with the letter and the response should not be included in the bundle.

2.6 What If One Party Has Not Complied With The Protocol ?

2.6.1 There can often be a complaint that one or other party has not complied with the Protocol. The court will consider any such complaints once proceedings have been commenced. If the court finds that the claimant has not complied with one part of the Protocol, then the court may stay the proceedings until the steps set out in the Protocol have been taken.

2.6.2 Paragraph 2.3 of the Practice Direction in respect of Protocols (section C of volume 1 of the White Book) makes plain that the court may make adverse costs orders against a party who has failed to comply with the Protocol. The court will exercise any sanctions available with the object of placing the innocent party in no worse a position than he would have been if the Protocol had been complied with.

2.6.3 The court is unlikely to be concerned with minor infringements of the Protocol or to engage in lengthy debates as to the precise quality of the information provided by one party to the other during the Protocol stages. The court will principally be concerned to ensure that, as a result of the Protocol stage, each party to any subsequent litigation has a clear understanding of the nature of the case that it has to meet at the commencement of those proceedings.

2.7 Costs of compliance with the Protocol.

2.7.1 If compliance with the Protocol results in settlement, the costs incurred will not be recoverable from the paying party, unless this is specifically agreed.

2.7.2 If compliance with the Protocol does not result in settlement, then the costs of the exercise cannot be recovered as costs, unless:

those costs fall within the principles stated by Sir Robert Megarry V-C in Re Gibson’s Settlement Trusts [1981] Ch 179; or

the steps taken in compliance with the Protocol can properly be attributable to the conduct of the action.

Section 3.

Commencement and Transfer

3.1 Claim Forms

3.1.1 All proceedings must be started using a claim form under CPR Part 7 or CPR Part 8. All claims allocated to the TCC are assigned to the Multi-Track: see CPR Rule 60.6(1).

3.2 Part 7 Claims

3.2.1 The Part 7 claim form must be marked “Technology and Construction Court” in the appropriate place on the form.

3.2.2. Particulars of Claim may be served with the claim form, but this is not a mandatory requirement. If the Particulars of Claim are not contained in or served with the claim form, they must be served within 14 days after service of the claim form.

3.2.3 A claim form must be verified by a statement of truth, and this includes any amendment to a claim form, unless the court otherwise orders.

3.3 Part 8 Claims

3.3.1 The Part 8 claim form must be marked “Technology and Construction Court” in the appropriate place on the form.

3.3.2 A Part 8 claim form will normally be used where there is no substantial dispute of fact, such as the situation where the dispute turns on the construction of the contract or the interpretation of statute. For example, claims challenging the jurisdiction of an adjudicator or the validity of his decision are sometimes brought under Part 8. In those cases the relevant primary facts are often not in dispute. Part 8 claims will generally be disposed of on written evidence and oral submissions.

3.3.3 It is important that, where a claimant uses the Part 8 procedure, his claim form states that Part 8 applies and that the claimant wishes the claim to proceed under Part 8.

3.3.4 A statement of truth is again required on a Part 8 claim form.

3.4 Service

3.4.1 Claim forms issued in the TCC at St Dunstan’s House in London are to be served by the claimant, not by the Registry. In some other court centres claim forms are served by the court, unless the claimant specifically requests otherwise.

3.4.2 The different methods of service are set out in CPR Part 6 and the accompanying Practice Direction.

3.4.3 Applications for an extension of time in which to serve a claim form are governed by CPR Rule 7.6. The evidence required on an application for an extension of time is set out in paragraph 8.2 of Practice Direction A supplementing CPR Part 7.

3.4.4 When the claimant has served the claim form, he must file a certificate of service: Rule 6.14 (2). This is necessary if, for instance, the claimant wishes to obtain judgment in default ( CPR Part 12).

3.4.5 Applications for permission to serve a claim form out of the jurisdiction are subject to Rules 6.19-6.31 inclusive.

3.5 Acknowledgment of Service

3.5.1 A defendant must file an acknowledgment of service in response to both Part 7 and Part 8 claims.Save in the special circumstances that arise when the claim form has been served out of the jurisdiction, the period for filing an acknowledgment of service is 14 days after service of the claim form.

3.6 Transfer

3.6.1 Proceedings may be transferred from any Division of the High Court or from any specialist list to the TCC pursuant to CPR rule 30.5. The order made by the transferring court should be expressed as being subject to the approval of a TCC judge. The decision whether to accept such a transfer must be made by a TCC judge: see rule 30.5 (3). Many of these applications are uncontested, and may conveniently be dealt with on paper. Transfers from the TCC to other Divisions of the High Court or other specialist lists are also governed by CPR rule 30.5. In London there are quite often transfers between the Commercial Court and the TCC, in order to ensure that cases are dealt with by the most appropriate judge. Outside London there are quite often transfers between the TCC and the mercantile courts.

3.6.2 A TCC claim may be transferred from the High Court to one of the county courts noted above, and from any county court to the High Court, if the criteria stated in CPR Rule 30.3 are satisfied. In ordinary circumstances, proceedings will be transferred from the TCC in the High Court to the TCC in an appropriate county court if the amount of the claim does not exceed £50,000.

3.6.3 Where no TCC judge is available to deal with a TCC claim which has been issued in a district registry or one of the county courts noted above, the claim may be transferred to another district registry or county court or to the High Court TCC in London (depending upon which court is appropriate).

3.7 Assignment

3.7.1 Where a claim has been issued at or transferred to the TCC at St Dunstan’s House in London, the Judge in Charge of the TCC (“the Judge in Charge”) shall with the assistance of court staff classify the case either “HCJ” or “SCJ”.

If the case is classified “HCJ”, it shall be managed and tried either by the Judge in Charge or by another High Court judge, who will be identified after consultation between the Judge in Charge and the Vice-President of the Queen’s Bench Division. The clerical administration of “HCJ” cases will be carried out by the Case Administration Unit (“CAU”) of the TCC at St Dunstan’s House. The CAU will also deal with the listing of all applications and trials in such cases.
If the case is classified “SCJ”, it shall be managed and tried by one of the senior circuit judges, who is a full time TCC judge in London. Cases in the latter category will either (a) be assigned by the Judge in Charge to a specific senior circuit judge or (b) be assigned to a senior circuit judge by operation of the rota. The assigned judge will have primary responsibility for the management of that case.
Although continuity of judge is regarded as important, it will sometimes be necessary for there to be a change of assigned judge. If no judge is available during the period fixed for trial, then the case may be tried by one of the deputy judges or recorders who has been nominated by the Lord Chancellor under section 68 (1) (a) of the Supreme Court Act 1981.

3.7.2 When classifying a case “HCJ” or “SCJ”, the Judge in Charge will take into account the following matters, as well as all the circumstances of the case:

The size and complexity of the case.
The nature and importance of any points of law arising.
The amount of money which is at stake.
Whether the case is one of public importance.
Whether the case has an international element or involves overseas parties.
The limited number of High Court judges and the needs of other court users, both civil and criminal.

Most TCC cases in London will be classified “SCJ”. The Judge in Charge may change the classification of any case from “HCJ” to “SCJ” or from “SCJ” to “HCJ”, if it becomes appropriate to do so. There will be a band of cases near the borderline between “HCJ” and “SCJ”, where the classification will be liable to change depending upon the settlement rate of other cases and the availability of judges.

3.7.3 When proceedings are commenced in, or transferred to, the TCC at St Dunstan’s House in London, any party to those proceedings may write to the court setting out matters relevant to classification. Any such letter should be clear and concise and should be copied to all other parties. A defendant who wishes to send such a letter should do so as soon as he becomes aware of the proceedings. Any party who believes that a case has been wrongly classified (whether “HCJ” or “SCJ”) should write to the court promptly setting out his grounds for that belief. All letters referred to in this paragraph are referred to the judge in charge of the TCC or (in his absence) to the other TCC High Court judge for consideration.

3.7.4 When a case has been assigned to a named senior circuit judge in the TCC at St Dunstan’s House, all communications to the court about the case (save for communications in respect of fees) shall be made to that judge’s clerk. When a TCC case has been assigned to a named High Court judge, all such communications shall be made to the CAU or to the judge’s clerk as appropriate. A Protocol on HMCS website sets out the procedure which will be followed when the CAU accepts a “provisional booking” for a High Court judge. All communications in respect of fees, however, should be sent to the Registry. All statements of case and applications should be marked with the name of the assigned judge.

3.7.5 There are full time TCC judges at Birmingham, Liverpool and Salford (Manchester). There are principal TCC judges at other court centres outside London. TCC cases at these court centres are assigned to judges either (a) by direction of the full time or principal TCC judge or (b) by operation of a rota. It will not generally be appropriate for the Judge in Charge (who is based in London) to consider TCC cases which are commenced in, or transferred to, court centres outside London. Nevertheless, if any TCC case brought in a court centre outside London appears to require management and trial by a High Court judge, then the full time or principal TCC judge at that court centre should refer the case to the Judge in Charge for a decision as to its future management and trial.

3.7.6 When a TCC case has been assigned to a named circuit judge at a court centre other than St Dunstan’s House, all communications to the court about the case (save for communications in respect of fees) shall be made to that judge’s clerk. All communications in respect of fees should be sent to the relevant registry. All statements of case and applications should be marked with the name of the assigned judge.

Section 4.

Access to the Court

4.1 General Approach

4.1.1 There may be a number of stages during the case management phase when the parties will make applications to the court for particular orders: see Section 6 below. There will also be the need for the court to give or vary directions, so as to enable the case to progress to trial.

4.1.2 The court is acutely aware of the costs that may be incurred when both parties prepare for an oral hearing in respect of such interlocutory matters and is always prepared to consider alternative, and less expensive, ways in which the parties may seek the court’s assistance.

4.1.3 There are certain stages in the case management phase when it will generally be better for the parties to appear before the assigned judge. Those are identified at Section 4.2 below. But there are other stages, and/or particular applications which a party may wish to make, which could conveniently be dealt with by way of a telephone hearing (Section 4.3 below) or by way of a paper application (Section 4.4 below).

4.2 Hearings in Court

4.2.1 First Case Management Conference. The court will normally require the parties to attend an oral hearing for the purposes of the first Case Management Conference. This is because there may be matters which the judge would wish to raise with the parties arising out of the answers to the case management information sheets and the parties’ proposed directions: see section 5.4 below. Even in circumstances where the directions and the case management timetable may be capable of being agreed by the parties and the court, the assigned judge may still wish to consider a range of case management matters face-to-face with the parties, including the possibility of ADR. See paragraphs 7.2.3, 7.3.2, 8.1.3, 11.1, 13.3, 13.4 and 16.3.2 below.

4.2.2 Whilst the previous paragraph sets out the ideal position, it is recognised that in low value cases the benefits of personal attendance might be outweighed by the costs involved. This is particularly so at court centres outside London, where the parties may have to travel substantial distances to court. Ultimately, the question whether personal attendance should be dispensed with at any particular case management conference must be decided by the judge, after considering any representations made and the circumstances of that particular case.

4.2.3 Pre-trial Review. It will normally be helpful for the parties to attend before the judge on a Pre-trial Review (“PTR”). It is always preferable for Counsel or other advocates who will be appearing at the trial to attend the PTR. Again, even if the parties can agree beforehand any outstanding directions and the detailed requirements for the management of the trial, it is still of assistance for the judge to raise matters of detailed trial management with the parties at an oral hearing. In appropriate cases, e.g. where the amount in issue is disproportionate to the costs of a full trial, the judge may wish to consider with the parties whether there are other ways in which the dispute might be resolved.

4.2.4 Whether or not other interlocutory applications require to be determined at an oral hearing will depend on the nature and effect of the application being made. Disputed applications for interim payments, summary judgment and security for costs will almost always require an oral hearing. Likewise, the resolution of a contested application to enforce an adjudicator’s decision will normally be heard orally. At the other end of the scale, applications for extensions of time for the service of pleadings or to comply with other orders of the court can almost always be dealt with by way of a telephone hearing or in writing.

4.3 Telephone Hearings

4.3.1 Depending on the nature of the application and the extent of any dispute between the parties, the Court is content to deal with many case management matters and other interlocutory applications by way of a telephone conference.

4.3.2 Whilst it is not possible to lay down mandatory rules as to what applications should be dealt with in this way (rather than by way of an oral hearing in court), it may be helpful to identify certain situations which commonly arise and which can conveniently be dealt with by way of a telephone conference.

If the location of the court is inconvenient for one or more of the parties, or the value of the claim is low, then the CMC and the PTR could, in the alternative to the procedure set out in Section 4.2 above, take place by way of a telephone conference. The judge’s permission for such a procedure would have to be sought in advance.
If the parties are broadly agreed on the orders to be made by the court, but they are in dispute in respect of one or two particular matters, then a telephone hearing is a convenient way in which those outstanding matters can be dealt with by the parties and the assigned judge.
Similarly, specific arguments about costs, once a substantive application has been disposed of, or arguments consequential on a particular judgment or order having been handed down, may also conveniently be dealt with by way of telephone hearing.

4.3.3 Telephone hearings are not generally suitable for matters which are likely to last for more than an hour, although the judge may be prepared, in an appropriate case, to list a longer application for a telephone hearing.

4.3.4 Practical matters. Telephone hearings can be listed at any time between 8.30 a.m. and 5.30 p.m., subject to the convenience of the parties and the availability of the judge. Any party, who wishes to have an application dealt with by telephone, should make such request by letter or e-mail to the judge’s clerk, sending copies to all other parties. Except in cases of urgency, the judge will allow a period of three days for the other parties to comment upon that request before deciding whether to deal with the application by telephone.

4.3.5 If permission is given for a telephone hearing, the court will normally indicate which party is to make all the necessary arrangements. In most cases, it will be the applicant. The procedure to be followed in setting up and holding a telephone hearing is that set out in section 6 of the Practice Direction supplementing CPR Part 23. The party making arrangements for the telephone hearing must ensure that all parties and the judge have a bundle for that hearing with identical pagination.

It is vital that the judge has all the necessary papers, in good time before the telephone conference, in order that it can be conducted efficiently and effectively.

4.4 Paper Applications

4.4.1 CPR rule 23.8 and section 11 of the accompanying Practice Direction enable certain applications to be dealt with in writing. Parties in a TCC case are encouraged to deal with applications in writing, whenever practicable. Applications for both abridgments of time and extensions of time can generally be dealt with in writing, as well as all other variations to existing directions which are wholly or largely agreed. Disputes over particular aspects of disclosure and evidence may also be capable of being resolved in this way.

4.4.2 If a party wishes to make an application to the court, it should ask itself the question: “Can this application be conveniently dealt with in writing?” If it can, then the party should issue the application and make its (short) written submissions both in support of its application and why it should be dealt with on paper. The application, any supporting evidence and the written submissions should be provided to all parties, as well as the court. These must include a draft of the precise order sought.

4.4.3 The party against whom the application is made, and any other interested party, should respond within 3 days dealing both with the substantive application and the request for it to be dealt with in writing.

4.4.4 The court can then decide whether or not to deal with the application in writing. If the parties are agreed that the court should deal with it in writing, it will be rare for the court to take a different view. If the parties disagree as to whether or not the application should be dealt with in writing, the court can decide that issue and, if it decides to deal with it in writing can go on to resolve the substantive point on the basis of the parties’ written submissions.

4.4.5 Further guidance in respect of paper applications is set out in Section 6.7 below.

4.4.6 It is important for the parties to ensure that all documents provided to the court are also provided to all the other parties, so as to ensure that both the court and the parties are working on the basis of the same documentation. The pagination of any bundle which is provided to the court and the parties must be identical.

4.5 E-mail Communications

4.5.1 The general rules relating to communication and filing of documents by e-mail are set out in CPR Part 5, Practice Direction B.

4.5.2 The judges’ clerks all have e-mail addresses identified in Appendix D . They welcome communication from the parties electronically. By agreement with the judge’s clerk, it may also be possible to provide documents to the Court in this way. However, it should be noted that HM Court Service has imposed a blanket restriction of 2MB on the length of any e-mail, including its attachments. This equates to approximately 40 pages of normal typescript.

4.5.3 Depending on the particular circumstances of an individual trial, the assigned judge may ask for an e-mail contact address for each of the parties and may send e-mail communications to that address. In addition, the judge may provide a direct contact e-mail address so that the parties can communicate directly with him out of court hours. In such circumstances, the judge and the parties should agree the times at which the respective e-mail addresses can be used.

4.5.4 Every e-mail communication to and from the judge must be simultaneously copied to all the other parties.

4.6 Video Conferencing

4.6.1 In appropriate cases, particularly where there are important matters in dispute and the parties’ representatives are a long distance from one another and/or the court, the hearing may be conducted by way of a Video Conference (“VC”). Prior arrangements will be necessary for any such hearing.

4.6.2 In London, a VC can be arranged through the VC suite at the Royal Courts of Justice. However, this facility is popular and will need to be booked well in advance of the hearing. Alternatively, there are a number of other VC suites in the Strand/Fleet Street area which would be suitable. Details of these facilities are available from the judges’ clerks.

4.6.3 Outside London, a VC can be arranged at the following TCC courts with the requisite facilities: Birmingham, Bristol, Cardiff, Central London, Chester, Exeter, Leeds, Liverpool, Newcastle-upon-Tyne, Nottingham, Salford (Manchester) and Winchester.

4.7 Contacting the court out of hours

4.7.1 Occasionally it is necessary to contact a TCC judge out of hours. For example, it may be necessary to apply for an injunction to prevent the commencement of building works which will damage adjoining property; or for an order to preserve evidence. A case may have settled and it may be necessary to inform the judge, before he/she spends an evening or a weekend reading the papers.

4.7.2 At St Dunstan’s House. RCJ Security has been provided with the telephone numbers and other contact information of all the TCC judges based at St Dunstan’s House and of the court manager. If contact is required with a judge out of hours, the initial approach should be to RCJ Security on 0207-947-6000. Security will then contact the judge and/or the court manager and pass on the message or other information. If direct contact with the judge or court manager is required, RCJ Security must be provided with an appropriate contact number. This number will then be passed to the judge and/or the court manager, who will decide whether it is appropriate for him or her to speak directly to the contacting party.

4.7.3 At other court centres. At the Central London Civil Justice Centre and at all court centres outside London there is a court officer who deals with out of hours applications.

4.8 Lodging documents.

4.8.1 In general documents should be lodged in hard copy and not sent by email or fax. This causes unnecessary duplication as well as additional work for hard-pressed court staff. Only if matters are urgent may documents be sent by either email or fax, with a hard copy sent by way of confirmation and marked as such. In certain cases, the court may ask for documents to be submitted in electronic form by email or otherwise, where that is appropriate.

Section 5.

Case Management and the First CMC

5.1 General

5.1.1 The general approach of the TCC to case management is to give directions at the outset and then throughout the proceedings to serve the overriding objective of dealing with cases justly. The judge to whom the case has been assigned has wide case management powers, which will be exercised to ensure that:

the real issues are identified early on and remain the focus of the ongoing proceedings;
a realistic timetable is ordered which will allow for the fair and prompt resolution of the action;
costs are properly controlled and reflect the value of the issues to the parties and their respective financial positions.

5.1.2 In order to assist the judge in the exercise of his case management functions, the parties will be expected to co-operate with one another at all times. See CPR rule 1.3. Costs sanctions may be applied, if the judge concludes that one party is not reasonably co-operating with the other parties.

5.1.3 A hearing at which the judge gives general procedural directions is a case management conference (“CMC”). CMCs are relatively informal and business-like occasions. Counsel are not robed. Representatives sit when addressing the judge.

5.1.4 The following procedures apply in order to facilitate effective case management:

CPR Part 29

The TCC encourages a structured exchange of proposals and submissions for CMCs in advance of the hearing, so as to enable the parties to respond on an informed basis to proposals made.
The judges of the TCC operate pro-active case management. In order to avoid the parties being taken by surprise by any judicial initiative, the judge will consider giving prior notification of specific or unusual case management proposals to be raised at a case management conference.

5.1.5 The TCC’s aim is to ensure that the trial of each case takes place before the judge who has managed the case since the first CMC. Whilst continuity of judge is not always possible, because of the need to double- or triple-book judges, or because cases can sometimes overrun their estimated length through no fault of the parties, this remains an aspiration of case management within the TCC.

5.2 The Fixing of the First CMC

5.2.1 Where a claim has been started in the TCC, or where it has been transferred into the TCC, paragraph 8.1 of the Part 60 Practice Direction requires the court to fix the first CMC within 14 days of the earliest of

the filing by the defendant of an acknowledgement of service or
the filing by the defendant of the defence or
the date of the order transferring the case to the TCC.
If some defendants but not others are served with proceedings, the claimant’s solicitors should so inform the court and liaise about the fixing of the first CMC.

5.2.2 This means that the first CMC takes place relatively early, sometimes before the defendant has filed a defence. However, if, as will usually be the case, the parties have complied with the protocol (Section 2 above) they will have a good idea of each other’s respective positions, and an effective CMC can take place. If, on the other hand, there has been a failure to comply with the protocol, or there are other reasons why the issues are not clearly defined at the outset, then it may be important for the judge to be involved at an early stage.

5.2.3 Despite the foregoing considerations, it is sometimes apparent to the parties that it will be more cost effective to postpone the first CMC until after service of the defence or the defences. If any of the parties wishes to delay the first CMC until then, they can write to the judge’s clerk explaining why a delayed CMC is appropriate. If such a request is agreed by the other party or parties, it is likely that the judge will grant the request.

5.3 The Case Management Information Sheet and Other Documents

5.3.1 All parties are expected to complete a detailed response to the case management information sheet sent out by the Registry when the case is commenced/transferred. A copy of a blank case management information sheet is attached as Appendix A . It is important that all parts of the form are completed, particularly those sections (e.g. concerned with estimated costs) that enable the judge to give directions in accordance with the overriding objective.

5.3.2 The Registry will also send out a blank standard directions form to each party. A copy is attached at Appendix B . This sets out the usual directions made on the first CMC. The parties should fill them in, indicating the directions and timetable sought. The parties should return both the questionnaire and the directions form to the court, so that the areas (if any) of potential debate at the CMC can be identified. The parties are encouraged to exchange proposals for directions and the timetable sought, with a view to agreeing the same before the CMC for consideration by the court.

5.3.3 If the case is large or complex, it is helpful for the advocates to prepare a Note to be provided to the judge the day before the CMC which can address the issues in the case, the suggested directions, and the principal areas of dispute between the parties. If such a Note is provided, it is unnecessary for the claimant also to prepare a Case Summary as well.

5.3.4 In smaller cases, a Case Summary for the CMC, explaining briefly the likely issues, can be helpful. Such Case Summaries should be non-contentious and should (if this is possible without incurring disproportionate cost) be agreed between the parties in advance of the hearing.

5.4 Checklist of Matters likely to be considered at the first CMC

5.4.1 The following checklist identifies the matters which the judge is likely to want to consider at the first CMC, although it is not exhaustive:

The need for, and content of, any further pleadings. This is dealt with in Section 5.5 below.
The outcome of the Protocol process, and the possible further need for ADR. ADR is dealt with in Section 7 below.
The desirability of dealing with particular disputes by way of a Preliminary Issue hearing. This is dealt with in Section 8 below.
Whether the trial should be in stages (e.g. stage 1 liability and causation, stage 2 quantum). In very heavy cases this may be necessary in order to make the trial manageable. In more modest cases, where the quantum evidence will be extensive, a staged trial may be in the interest of all parties.
The appropriate orders in respect of the disclosure of documents. This is dealt with in Section 11 below.
The appropriate orders as to the exchange of written witness statements. This is dealt with in Section 12 below. It should be noted that, although it is normal for evidence-in-chief to be given by way of the written statements in the TCC, the judge may direct that evidence about particular disputes (such as what was said at an important meeting) should be given orally without reference to such statements.
Whether it is appropriate for the parties to rely on expert evidence and, if so, what disciplines of experts should give evidence, and on what issues. This may be coupled with an order relating to the carrying out of inspections, the obtaining of samples, the conducting of experiments, or the performance of calculations. Considerations relating to expert evidence are dealt with in Section 13 below. The parties must be aware that, in accordance with the overriding objective, the judge will only give the parties permission to rely on expert evidence if it is both necessary and appropriate, and, even then, will wish to ensure that the scope of any such evidence is limited as far as possible.
In certain cases the possibility of making a costs cap order. See section 16.3 below.
The appropriate timetable for the taking of the various interlocutory steps noted above, and the fixing of dates for both the PTR and the trial itself (subject to paragraph 5.4.2 below). The parties will therefore need to provide the judge with an estimate for the length of the trial, assuming all issues remain in dispute. Unless there is good reason not to, the trial date will generally be fixed at the first CMC (although this may be more difficult at court centres with only one TCC judge). Therefore, to the extent that there are any relevant concerns as to availability of either witnesses or legal representatives, they need to be brought to the attention of the court on that occasion. The length of time fixed for the trial will depend on the parties’ estimates, and also the judge’s own view.

If the parties’ estimate of trial length subsequently changes, they should inform the clerk of the assigned judge immediately.

5.4.2 The fixing of the trial date at the CMC is usually as a provisional fixture. Therefore no trial fee is payable at this stage. The court should at the same time specify a date upon which the fixture will cease to be “provisional” and, therefore, the trial fee will become payable. This should ordinarily be two months before the trial date. It should be noted that:

if the trial fee is not paid within 14 days of the due date, then the whole claim will be struck out: see CPR rule 3.7 (1) (a) and (4);
if the court is notified at least 14 days before the trial date that the case is settled or discontinued, then the trial fee, which has been paid, shall be refunded: see fee 2.2 in Schedule 1 to the Civil Proceedings Fees Order 2004.

For all other purposes other than payment of the trial fee, the provisional date fixed at the CMC shall be regarded as a firm date.

5.4.3 Essentially, the judge’s aim at the first CMC is to set down a detailed timetable which, in the majority of cases, will ensure that the parties need not return to court until the PTR.

5.5 Further Pleadings

5.5.1 Defence. If no defence has been served prior to the first CMC, then (except in cases where judgment in default is appropriate) the court will usually make an order for service of the defence within a specified period. The defendant must plead its positive case. Bare denials and non-admissions are, save in exceptional circumstances, unacceptable.

5.5.2 Further Information. If the defendant wants to request further information of the Particulars of Claim, the request should, if possible, be formulated prior to the first CMC, so that it can be considered on that occasion. All requests for further information should be kept within reasonable limits, and concentrate on the important parts of the case.

5.5.3 Reply. A reply to the defence is not always necessary. However, where the defendant has raised a positive defence on a particular issue, it may be appropriate for the claimant to set out in a reply how it answers such a defence. If the defendant makes a counterclaim, the claimant’s defence to counterclaim and its reply (if any) should be in the same document.

5.5.4 Part 20 Claims. The defendant should, at the first CMC, indicate (so far as possible) any Part 20 claims that it is proposing to make, whether against the claimant or any other party. Part 20 claims are required to be pleaded in the same detail as the original claim. They are a very common feature of TCC cases, because the widespread use of sub-contractors in the UK construction industry often makes it necessary to pass claims down a contractual chain. Defendants are encouraged to start any necessary Part 20 proceedings as soon as possible. It is undesirable for applications to join Part 20 defendants, to be made late in the proceedings.

5.6 Scott Schedules

5.6.1 It can sometimes be appropriate for elements of the claim, or any Part 20 claim, to be set out by way of a Scott Schedule. For example, claims involving a final account or numerous alleged defects or items of disrepair, may be best formulated in this way, which then allows for a detailed response from the defendant. Sometimes, even where all the damage has been caused by one event, such as a fire, it can be helpful for the individual items of loss and damage to be set out in a Scott Schedule. The secret of an effective Scott Schedule lies in the information that is to be provided. This is defined by the column headings. The judge may give directions for the relevant column headings for any Schedule ordered by the court. It is important that the defendant’s responses to any such Schedule are as detailed as possible. Each party’s entries on a Scott Schedule should be supported by a statement of truth.

5.6.2 Nevertheless, before any order is made or agreement is reached for the preparation of a Scott Schedule, both the parties and the court should consider whether this course (a) will genuinely lead to a saving of cost and time or (b) will lead to a wastage of costs and effort (because the Scott Schedule will simply duplicating earlier schedules, pleadings or expert reports). A Scott Schedule should only be ordered by the court, or agreed by the parties, in those cases where it is appropriate and proportionate.

5.6.3 When a Scott Schedule is ordered by the court or agreed by the parties, the format must always be specified. The parties must co-operate in the physical task of preparation. Electronic transfer between the parties of their respective entries in the columns will enable a clear and user-friendly Scott Schedule to be prepared, for the benefit of all involved in the trial.

5.7 Agreement Between the Parties

5.7.1 Many, perhaps most, of the required directions at the first CMC may be agreed by the parties. If so, the judge will endeavour to make orders in the terms which have been agreed, unless he considers that the agreed terms fail to take into account important features of the case as a whole, or the principles of the CPR. The agreed terms will always, at the very least, form the starting-point of the judge’s consideration of the orders to be made at the CMC. If the agreed terms are submitted to the judge 3 days in advance of the hearing date, it may be possible to avoid the need for a hearing altogether.

5.7.2 The approach outlined in paragraph 5.7.1 above is equally applicable to all other occasions when the parties come before the court with a draft order that is wholly or partly agreed.

5.8 Drawing Up of Orders

5.8.1 Unless the court itself draws up the order, it will direct one party (usually the claimant or applicant) to do so within a specified time. That party must draw up the order and lodge it with the court for approval. Once approved, the order will be stamped by the court and returned to that party for service upon all other parties.

5.9 Further CMC

5.9.1 In an appropriate case, the judge will fix a review CMC, to take place part way through the timetable that has been set down, in order to allow the court to review progress, and to allow the parties to raise any matters arising out of the steps that have been taken up to that point. This will not, however, be ordered automatically.

5.9.2 Each party will be required to give notice in writing to the other parties and the court of any order which it will be seeking at the review CMC, two days in advance of the hearing..

5.10 The Permanent Case Management Bundle

5.10.1 In conjunction with the judge’s clerk, the claimant’s solicitor is responsible for ensuring that, for the first CMC and at all times thereafter, there is a permanent bundle of copy documents available to the judge, which contains:

any relevant documents resulting from the Pre-Action Protocol;
the claim form and all statements of case;
all orders;
all completed case management information sheets.

5.10.2 The permanent case management bundle can then be supplemented by the specific documents relevant to any particular application that may be made. Whether these supplementary documents should (a) become a permanent addition to the case management bundle or (b) be set on one side, will depend upon their nature. The permanent case management bundle may remain at court and be marked up by the judge; alternatively, the judge may direct that the permanent case management bundle be maintained at the offices of the claimant’s solicitors and provided to the court when required.

Section 6.

Applications after the First CMC

6.1 Relevant parts of the CPR

6.1.1 The basic rules relating to all applications that any party may wish to make are set out in CPR Part 23 and its accompanying Practice Directions.

6.1.2 Part 7 of the Practice Direction accompanying CPR Part 60 is also of particular relevance.

6.2 Application Notice

6.2.1 As a general rule, any party to proceedings in the TCC wishing to make an application of any sort must file an application notice (rule 23.3) and serve that application notice on all relevant parties as soon as practicable after it has been filed (rule 23.4). Application notices should be served by the parties, unless (as happens in some court centres outside London) service is undertaken by the court.

6.2.2 The application notice must set out in clear terms what order is sought and, more briefly, the reasons for seeking that order: see rule 23.6.

6.2.3 The application notice must be served at least 3 days before the hearing at which the Court deals with the application: rule 23.7 (1). Such a short notice period is only appropriate for the most straight-forward type of application.

6.2.4 Most applications, in particular applications for summary judgment under CPR Part 24 or to strike out a statement of case under CPR rule 3.4, will necessitate a much longer notice period than 3 days. In such cases, it is imperative that the applicant obtain a suitable date and time for the hearing of the application from the assigned judge’s clerk before the application notice is issued. The applicant must then serve his application notice and evidence in support sufficiently far ahead of the date fixed for the hearing of the application for there to be time to enable the respondent to serve evidence in response. Save in exceptional circumstances, there should be a minimum period of 10 working days between the service of the notice (and supporting evidence) and the hearing date. If any party considers that there is insufficient time before the hearing of the application or if the time estimate for the application itself is too short, that party must notify the Judge’s clerk and the hearing may then be refixed by agreement.

6.2.5 When considering the application notice, the judge may give directions in writing as to the dates for the provision or exchange of evidence and any written submissions or skeleton arguments for the hearing.

6.3 Evidence in Support

6.3.1 The application notice when it is served must be accompanied by all evidence in support: rule 23.7 (2).

6.3.2 Unless the CPR expressly requires otherwise, evidence will be given by way of witness statements. Such statements must be verified by a statement of truth signed by the maker of the statement: rule 22.1.

6.4 Evidence in opposition and Evidence in reply

6.4.1 Likewise, any evidence in opposition to the application should, unless the rules expressly provide otherwise, be given by way of witness statement verified by a statement of truth.

6.4.2 It is important to ensure that the evidence in opposition to the application is served in good time before the hearing so as to enable:

the court to read and note up the evidence;
the applicant to put in any further evidence in reply that may be considered necessary.

Such evidence should be served at least 5 working days before the hearing.

6.4.3 Any evidence in reply should be served not less than 3 working days before the hearing. Again, if there are disputes as to the time taken or to be taken for the preparation of evidence prior to a hearing, or any other matters in respect of a suitable timetable for that hearing, the court will consider the written positions of both parties and decide such disputes on paper. It will not normally be necessary for either a separate application to be issued or a hearing to be held for such a purpose.

6.4.4 If the hearing of an application has to be adjourned because of delays by one or other of the parties in serving evidence, the court is likely to order that party to pay the costs straight away, and to make a summary assessment of those costs.

6.5 Application Bundle

6.5.1 The bundle for the hearing of anything other than the most simple and straightforward application should consist of:

the permanent case management bundle (see Section 5.8 above);
the witness statements provided in support of the application, together with any exhibits;
the witness statements provided in opposition to the application together with exhibits;
any witness statements in reply, together with exhibits.

6.5.2 The permanent case management bundle will either be with the court or with the claimant’s solicitors, depending on the order made at the first CMC: see paragraph 5.9 above. If it is with the claimant’s solicitors, it should be provided to the court not less than 2 working days before the hearing. In any event, a paginated bundle (see paragraph 6.5.4 below) containing any material specific to the application should also be provided to the court not less than 2 working days before the hearing, unless otherwise directed by the judge. A failure to comply with this deadline may result in the adjournment of the hearing, and the costs thrown away being paid by the defaulting party.

6.5.3 In all but the simplest applications, the court will expect the parties to provide skeleton arguments and copies of any authorities to be relied on. The form and content of the skeleton argument is principally a matter for the author, although the judge will expect it to identify the issues that arise on the application, the important parts of the evidence relied on, and the applicable legal principles. For detailed guidance as to the form, content and length of skeleton arguments, please see paragraph 7.11.12 of the Queen’s Bench Guide; Appendix 3 of the Chancery Guide; and Appendix 9 of the Commercial Court Guide.

6.5.4 For an application that is estimated to last ½ day or less, the skeleton should be provided no later than 1 pm on the last working day before the hearing. It should be accompanied by photocopies of the authorities relied on.

6.5.5 For an application that is estimated to last more than ½ day, the skeleton should be provided no later than 4 pm one clear working day before the hearing. It should be accompanied by photocopies of the authorities relied on.

6.5.6 The time limits at paragraphs 6.5.4 and 6.5.5 above will be regarded as the latest times by which such skeletons should be provided to the court. Save in exceptional circumstances, no extension to these periods will be permitted.

6.5.7 Pagination. It is generally necessary for there to be a paginated bundle for the hearing. Where the parties have produced skeleton arguments, these should be cross-referred to the bundle page numbers.

6.6 Hearings

6.6.1 Arbitration applications may be heard in private: see CPR rule 62.10. All other applications will be heard in public in accordance with CPR rule 39.2, save where otherwise ordered.

6.6.2 Provided that the application bundle and the skeletons have been lodged in accordance with the time limits set out above, the parties can assume that the court will have a good understanding of the points in issue. However, the court will expect to be taken to particular documents relied on by the parties and will also expect to be addressed on any important legal principles that arise.

6.6.3 It is important that the parties ensure that every application is dealt with in the estimated time period. Since many applications are dealt with on Fridays, it causes major disruption if application hearings are not disposed of within the estimated period. If the parties take too long in making their submissions, the application may be adjourned, part heard, and the Court may impose appropriate costs sanctions.

6.6.4 At the conclusion of the hearing, unless the court itself draws up the order, it will direct the applicant’s solicitor to do so within a specified period.

6.7 Paper Applications

6.7.1 Contested applications are usually best disposed of at an oral hearing (either in court or by telephone). However, as noted in Section 4 above, some applications may be suitable for determination on paper. The procedure for dealing with paper applications is outlined in paragraph 4.4 above.

6.7.2 In addition, certain simple applications (particularly in lower value cases) arising out of the management of the proceedings may be capable of being dealt with by correspondence without the need for any formal application or order of the court. This is particularly true of applications to vary procedural orders, which variations are wholly or largely agreed, or proposals to vary the estimated length of the trial. In such cases, the applicant should write to the other parties indicating the nature of its application and to seek their agreement to it. If, however, it emerges that there is an issue to be resolved by the court, then a formal application must be issued and dealt with in the normal manner.

6.8 Consent Orders

6.8.1 Consent Orders may be submitted to the Court in draft for approval and initialling without the need for attendance.

6.8.2 Two copies of the draft order should be lodged, at least one of which should be signed. The copies should be undated.

6.8.3 As noted above, whilst the parties can agree between themselves the orders to be made either at the Case Management Conference or the Pre-Trial Review, it is normally necessary for the Court to consider the case with the parties (either at an oral hearing or by way of a telephone conference) on those occasions in any event.

6.8.4 Generally, when giving directions, the court will endeavour to identify the date by which the relevant step must be taken, and will not simply provide a period during which that task should be performed. The parties should therefore ensure that any proposed consent order also identifies particular dates, rather then periods, by which the relevant steps must be taken.

6.9 Costs

6.9.1 Costs are dealt with generally at Section 16 below.

6.9.2 The costs of any application which took a day or less to be heard and disposed of will be dealt with summarily, unless there is a good reason for the court not to exercise its powers as to the summary assessment of costs.

6.9.3 Accordingly, it is necessary for parties to provide to the court and to one another their draft statements of costs no later than 24 hours before the start of the application hearing. Any costs which are incurred after these draft statements have been prepared, but which have not been allowed for (e.g. because the hearing has exceeded its anticipated length), can be mentioned at the hearing.

Section 7.

ADR

7.1 General

7.1.1 The court will provide encouragement to the parties to use alternative dispute resolution (“ADR”) and will, whenever appropriate, facilitate the use of such a procedure. In this Guide, ADR is taken to mean any process through which the parties attempt to resolve their dispute, which is voluntary. In most cases, ADR takes the form of mediation conducted by a neutral mediator. Alternative forms of ADR include formal inter-party negotiations or (occasionally) early neutral evaluations. In an early neutral evaluation either a judge or some other neutral person receives a concise presentation from each party and then states his own evaluation of the case.

7.1.2 Although the TCC is an appropriate forum for the resolution of all IT and construction/engineering disputes, the use of ADR can lead to a significant saving of costs and may result in a settlement which is satisfactory to all parties.

7.1.3 Legal representatives in all TCC cases should ensure that their clients are fully aware of the benefits of ADR and that the use of ADR has been carefully considered prior to the first CMC.

7.2 Timing

7.2.1 ADR may be appropriate before the proceedings have begun or at any subsequent stage.

7.2.2 The TCC Pre-Action Protocol (Section 2 above) itself provides for a type of ADR, because it requires there to be at least one face-to-face meeting between the parties before the commencement of proceedings. At this meeting, there should be sufficient time to discuss and resolve the dispute. As a result of this procedure having taken place, the court will not necessarily grant a stay of proceedings upon demand and it will always need to be satisfied that an adjournment is actually necessary to enable ADR to take place.

7.2.3 However, at the first CMC, the court will want to be addressed on the parties’ views as to the likely efficacy of ADR, the appropriate timing of ADR, and the advantages and disadvantages of a short stay of proceedings to allow ADR to take place. Having considered the representations of the parties, the court may order a short stay to facilitate ADR at that stage. Alternatively, the court may simply encourage the parties to seek ADR and allow for it to occur within the timetable for the resolution of the proceedings set down by the court.

7.2. At any stage after the first CMC and prior to the commencement of the trial, the court, will, either on its own initiative or if requested to do so by one or both of the parties, consider afresh the likely efficacy of ADR and whether or not a short stay of the proceedings should be granted, in order to facilitate ADR.

7.3 Procedure

7.3.1 In an appropriate case, the court may indicate the type of ADR that it considers suitable, but the decision in this regard must be made by the parties. In most cases, the appropriate ADR procedure will be mediation.

7.3.2 If at any stage in the proceedings the court considers it appropriate, an ADR order in the terms of Appendix E may be made. If such an order is made at the first CMC, the court may go on to give directions for the conduct of the action up to trial (in the event that the ADR fails). Such directions may include provision for a review CMC.

7.3.3 The court will not ordinarily recommend any individual or body to act as mediator or to perform any other ADR procedure. In the event that the parties fail to agree the identity of a mediator or other neutral person pursuant to an order in the terms of Appendix E , the court may select such a person from the lists provided by the parties. To facilitate this process, the court would also need to be furnished with the C.V’s of each of the individuals on the lists.

7.3.4 Information as to the types of ADR procedures available and the individuals able to undertake such procedures is available from TeCSA, TECBAR, the Civil Mediation Council, and from some TCC court centres outside London.

7.4 Non-Cooperation

7.4.1 Generally. At the end of the trial, there may be costs arguments on the basis that one or more parties unreasonably refused to take part in ADR. The court will determine such issues having regard to all the circumstances of the particular case. In Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576; [2004] 1 WLR 3002, the Court of Appeal identified six factors that may be relevant to any such consideration:

the nature of the dispute;
the merits of the case;
the extent to which other settlement methods have been attempted;
whether the costs of the ADR would be disproportionately high;
whether any delay in setting up and attending the ADR would have been prejudicial;
whether the ADR had a reasonable prospect of success.

7.4.2 If an ADR Order Has Been Made. The court will expect each party to co-operate fully with any ADR which takes place following an order of the court. If any other party considers that there has not been proper co-operation in relation to arrangements for the mediation, the complaint will be considered by the court and cost orders and/or other sanctions may be ordered against the defaulting party in consequence. However, nothing in this paragraph should be understood as modifying the rights of all parties to a mediation to keep confidential all that is said or done in the course of that mediation.

7.5 Early Neutral Evaluation

7.5.1 An early neutral evaluation (“ENE”) may be carried out by any appropriately qualified person, whose opinion is likely to be respected by the parties. In an appropriate case, and with the consent of all parties, a TCC judge may provide an early neutral evaluation either in respect of the full case or of particular issues arising within it. Such an ENE will not, save with the agreement of the parties, be binding on the parties.

7.5.2 If the parties would like an ENE to be carried out by the court, then they can seek an appropriate order from the assigned judge either at the first CMC or at any time prior to the commencement of the trial.

7.5.3 The assigned judge may choose to do the ENE himself. In such instance, the judge will take no further part in the proceedings once he has produced the ENE, unless the parties expressly agree otherwise. Alternatively, the assigned judge will select another available TCC judge to undertake the ENE.

7.5.4 The judge undertaking the ENE will give appropriate directions for the preparation and conduct of the ENE. This may include a stay of the substantive proceedings whilst the ENE is carried out. The ENE may be carried out entirely on paper. Alternatively, there may be an oral hearing (either with or without evidence). The parties should agree whether the entire ENE procedure is to be without prejudice, or whether it can be referred to at any subsequent trial or hearing.

Section 8.

Preliminary Issues

8.1 General

8.1.1 The hearing of Preliminary Issues (“PI”), at which the court considers and delivers a binding judgment on particular issues in advance of the main trial, can be an extremely cost-effective and efficient way of narrowing the issues between the parties and, in certain cases, of resolving disputes altogether.

8.1.2 Some cases listed in the TCC lend themselves particularly well to this procedure. A PI hearing can address particular points which may be decisive of the whole proceedings; even if that is not the position, it is often possible for a PI hearing to cut down significantly on the scope (and therefore the costs) of the main trial.

8.1.3 At the first CMC the court will expect to be addressed on whether or not there are matters which should be taken by way of Preliminary Issues in advance of the main trial. Subject to paragraph 8.5 below, it is not generally appropriate for the court to make an order for the trial of preliminary issues until after the defence has been served. After the first CMC, and at any time during the litigation, any party is at liberty to raise with any other party the possibility of a PI hearing and the court will consider any application for the hearing of such Preliminary Issues. In many cases, although not invariably, a PI order will be made with the support of all parties.

8.1.4 Whilst, for obvious reasons, it is not possible to set out hard and fast rules for what is and what is not suitable for a PI hearing, the criteria set out in Section 8.2 below should assist the parties in deciding whether or not some or all of the disputes between them will be suitable for a PI hearing.

8.1.5 Drawbacks of preliminary issues in inappropriate cases. If preliminary issues are ordered inappropriately, they can have adverse effect. Evidence may be duplicated. The same witnesses may give evidence before different judges, in the event that there is a switch of assigned judge. Findings may be made at the PI hearing, which are affected by evidence called at the main hearing. The prospect of a PI hearing may delay the commencement of ADR or settlement negotiations. Also two trials are more expensive than one. For all these reasons, any proposal for preliminary issues needs to be examined carefully, so that the benefits and drawbacks can be evaluated. Also the court should give due weight to the views of the parties when deciding whether a PI hearing would be beneficial.

8.1.6 Staged trials. The breaking down of a long trial into stages should be differentiated from the trial of preliminary issues. Sometimes it is sensible for liability (including causation) to be tried before quantum of damages. Occasionally the subject matter of the litigation is so extensive that for reasons of case management the trial needs to be broken down into separate stages.

8.2 Guidelines

8.2.1 The Significance of the Preliminary Issues. The court would expect that any issue proposed as a suitable PI would, if decided in a particular way, be capable of:

resolving the whole proceedings or a significant element of the proceedings; or
significantly reducing the scope, and therefore the costs, of the main trial; or
significantly improving the possibility of a settlement of the whole proceedings.

8.2.2 Oral Evidence. The court would ordinarily expect that, if issues are to be dealt with by way of a PI hearing, there would be either no or relatively limited oral evidence. If extensive oral evidence was required on any proposed PI, then it may not be suitable for a PI hearing. Although it is difficult to give specific guidance on this point, it is generally considered that a PI hearing in a smaller case should not take more than about 2 days, and in a larger and more complex case, should not take more than about 4 days.

8.3 Common Types of Preliminary Issue

The following are commonly resolved by way of a PI hearing:

Disputes as to whether or not there was a binding contract between the parties.
Disputes as to what documents make up or are incorporated within the contract between the parties and disputes as to the contents or relevance of any conversations relied on as having contractual status or effect.
Disputes as to the proper construction of the contract documents or the effect of an exclusion or similar clause.
Disputes as to the correct application of a statute or binding authority to a situation where there is little or no factual dispute.
Disputes as to the existence and/or scope of a statutory duty .
Disputes as to the existence and/or scope of a duty of care at common law in circumstances where there is no or little dispute about the relevant facts.

8.4 Other Possible Preliminary Issues

The following can sometimes be resolved by way of a preliminary issue hearing, although a decision as to whether or not to have such a hearing will always depend on the facts of the individual case:

8.4.1 A Limitation Defence. It is often tempting to have limitation issues resolved in advance of the main trial. This can be a good idea because, if a complex claim is statute-barred, a decision to that effect will lead to a significant saving of costs. However, there is also a risk that extensive evidence relevant to the limitation defence (relating to matters such as when the damage occurred or whether or not there has been deliberate concealment) may also be relevant to the liability issues within the main trial. In such a case, a preliminary issue hearing may lead to a) extensive duplication of evidence and therefore costs and b) give rise to difficulty if the main trial is heard by a different judge.

8.4.2 Causation and ‘No Loss’ Points. Causation and ‘No Loss’ points may be suitable for a PI hearing, but again their suitability will diminish if it is necessary for the court to resolve numerous factual disputes as part of the proposed PI hearing. The most appropriate disputes of this type for a PI hearing are those where the defendant contends that, even accepting all the facts alleged by the claimant, the claim must fail by reason of causation or the absence of recoverable loss.

8.4.3 ‘One-Off’ Issues. Issues which do not fall into any obvious category, like economic duress, or misrepresentation, may be suitable for resolution by way of a PI hearing, particularly if the whole case can be shown to turn on them.

8.5 Use of PI as an adjunct to ADR

8.5.1 Sometimes parties wish to resolve their dispute by ADR, but there is one major issue which is a sticking point in any negotiation or mediation. The parties may wish to obtain the court’s decision on that single issue, in the expectation that after that they can resolve their differences without further litigation.

8.5.2 In such a situation the parties may wish to bring proceedings under CPR Part 8, in order to obtain the court’s decision on that issue. Such proceedings can be rapidly progressed. Alternatively, if the issue is not suitable for Part 8 proceedings, the parties may bring proceedings under Part 7 and then seek determination of the critical question as a preliminary issue. At the first CMC the position can be explained and the judge can be asked to order early trial of the proposed preliminary issue, possibly without the need for a defence or any further pleadings.

8.6 Precise Wording of PI

8.6.1 If a party wishes to seek a PI hearing, either at the first CMC or thereafter, that party must circulate a precise draft of the proposed preliminary issues to the other parties and to the court well in advance of the relevant hearing.

8.6.2 If the court orders a PI hearing, it is likely to make such an order only by reference to specific and formulated issues, in order to avoid later debate as to the precise scope of the issues that have been ordered. Of course, the parties are at liberty to propose amendments to the issues before the PI hearing itself, but if such later amendments are not agreed by all parties, they are unlikely to be ordered.

8.7 Appeals

8.7.1 When considering whether or not to order a PI hearing, the court will take into account the effect of any possible appeal against the PI judgment, and the concomitant delay caused.

8.7.2 At the time of ordering preliminary issues, both the parties and the court should specifically consider whether, in the event of an appeal against the PI judgment, it is desirable that the trial of the main action should (a) precede or (b) follow such appeal. It should be noted, however, that the first instance court has no power to control the timetable for an appeal. A first instance court’s power to extend time under CPR rule 52.4 (2) (a) for filing an appellant’s notice is effectively limited to 14 days (see paragraph 5.19 of the Practice direction supplementing Part 52). The question whether an appeal should be (a) expedited or (b) stayed is entirely a matter for the Court of Appeal. Nevertheless, the Court of Appeal will take notice of any “indication” given by the lower court in this regard.

Section 9.

Adjudication Business

9.1 Introduction

9.1.1 The TCC is ordinarily the court in which the enforcement of an adjudicator’s decision and any other business connected with adjudication is undertaken. Adjudicators’ decisions predominantly arise out of adjudications which are governed by the mandatory provisions of the Housing Grants, Construction and Regeneration Act 1996 (“HGCRA”). These provisions apply automatically to any construction contract as defined in the legislation. Some Adjudicators’ decisions arise out of standard form contracts which contain adjudication provisions, and others arise from ad-hoc agreements to adjudicate. The TCC enforcement procedure is the same for all three kinds of adjudication.

9.1.2 In addition to enforcement applications, declaratory relief is sometimes sought in the TCC at the outset of an adjudication in respect of matters such as the jurisdiction of the adjudicator or the validity of the adjudication. This kind of application is dealt with in Paragraph 9.4 below.

9.1.3 The HGCRA provides for a mandatory 28-day period within which the entire adjudication process must be completed, unless a) the referring party agrees to an additional 14 days, or b) both parties agree to a longer period. In consequence, the TCC has moulded a rapid procedure for enforcing an adjudication decision that has not been honoured. Other adjudication proceedings are ordinarily subject to similar rapidity.

9.2 Procedure In Enforcement Proceedings

9.2.1 Unlike arbitration business, there is neither a practice direction nor a claim form concerned with adjudication business. The enforcement proceedings normally seek a monetary judgment so that CPR Part 7 proceedings are usually appropriate. However, if the enforcement proceedings are known to raise a question which is unlikely to involve a substantial dispute of fact and no monetary judgment is sought, CPR Part 8 proceedings may be used instead.

9.2.2 The TCC has fashioned a procedure whereby enforcement applications are dealt with promptly. The details of this procedure are set out below.

9.2.3 The claim form should identify the construction contract, the jurisdiction of the adjudicator, the procedural rules under which the adjudication was conducted, the adjudicator’s decision, the relief sought and the grounds for seeking that relief.

9.2.4 The claim form should be accompanied by an application notice that sets out the procedural directions that are sought. Commonly, the claimant’s application will seek an abridgement of time for the various procedural steps, and summary judgment under CPR Part 24. The claim form and the application should be accompanied by a witness statement or statements setting out the evidence relied on in support of both the adjudication enforcement claim and the associated procedural application. This evidence should ordinarily include a copy of the adjudicator’s decision.

9.2.5 The claim form, application notice and accompanying documents should be lodged in the appropriate registry or court centre clearly marked as being a “paper without notice adjudication enforcement claim and application for the urgent attention of a TCC judge”. The parties will be informed that the enforcement proceedings will be assigned to a named judge. That judge will then manage the proceedings up to and including any hearing. He will ordinarily provide his directions made in connection with the procedural application within 3 working days of the receipt of the application notice at the courts.

9.2.6 The procedural application is dealt with by a TCC judge on paper, without notice. The paper application and the consequent directions should deal with:

the abridged period of time in which the defendant is to file an acknowledgement of service;
the time for service by the defendant of any witness statement in opposition to the relief being sought;
an early return date for the hearing of the summary judgment application and a note of the time required or allowed for that hearing; and
identification of the judgment, order or other relief being sought at the hearing of the adjudication claim.

The order made at this stage will always give the defendant liberty to apply.

9.2.7 A direction providing for a date by which the claim form, supporting evidence and court order providing for the hearing are to be served on the defendant should ordinarily also be given when the judge deals with the paper procedural application.

9.2.8 The directions will ordinarily provide for an enforcement hearing within 28 days of the directions being made and for the defendant to be given at least 14 days from the date of service for the serving of any evidence in opposition to the adjudication application. In more straightforward cases, the abridged periods may be less.

9.2.9 Draft standard directions of the kind commonly made by the court on a procedural application by the claimant in an action to enforce the decision of an adjudicator are attached as Appendix F .

9.2.10 The claimant should, with the application, provide an estimate of the time needed for the hearing of the application. This estimate will be taken into account by the judge when fixing the date and length of the hearing. The parties should, if possible jointly, communicate any revised time estimate to the court promptly and the judge to whom the case has been allocated will consider whether to refix the hearing date or alter the time period that has been allocated for the hearing.

9.2.11 If the parties cannot agree on the date or time fixed for the hearing, a paper application must be made to the judge to whom the hearing has been allocated for directions.

9.3 The Enforcement Hearing

9.3.1 Where there is any dispute to be resolved at the hearing, the judge should be provided with copies of the relevant sections of the HGCRA, the adjudication procedural rules under which the adjudication was conducted, the adjudicator’s decision and copies of any adjudication provisions in the contract underlying the adjudication.

9.3.2 Subject to any more specific directions given by the court, the parties should lodge, by 4.00 p.m. one clear working day before the hearing, a bundle containing the documents that will be required at the hearing and copies of any authorities which are to be relied on. The parties should also file and serve short skeleton arguments, summarising their respective contentions as to why the adjudicator’s decision is or is not enforceable or as to any other relief being sought. For a hearing that is expected to last half a day or less, the skeletons should be provided no later than 1 p.m. on the last working day before the hearing. For a hearing that is estimated to last more than half a day, the skeletons should be provided no later than 4 p.m. one clear working day before the hearing.

9.3.3 The parties should be ready to address the court on the limited grounds on which a defendant may resist an application seeking to enforce an adjudicator’s decision or on which a court may provide any other relief to any party in relation to an adjudication or an adjudicator’s decision.

9.4 Other Proceedings Arising Out Of Adjudication

9.4.1 As noted above, the TCC will also hear any applications for declaratory relief arising out of the commencement of a disputed adjudication. Commonly, these will concern:

Disputes over the jurisdiction of an adjudicator. It can sometimes be appropriate to seek a declaration as to jurisdiction at the outset of an adjudication, rather than both parties incurring considerable costs in the adjudication itself, only for the jurisdiction point to emerge again at the enforcement hearing.
Disputes over whether there is a written contract between the parties or, in appropriate cases, whether there is a construction contract within the meaning of the Act.
Disputes over the permissible scope of the adjudication, and, in particular, whether the matters which the claimant seeks to raise in the adjudication are the subject of a pre-existing dispute between the parties.

9.4.2 Any such application will be immediately assigned to a named judge. In such circumstances, given the probable urgency of the application, the judge will usually require the parties to attend a CMC within 2 working days of the assignment of the case to him, and he will then give the necessary directions to ensure the speedy resolution of the dispute.

9.4.3 It sometimes happens that one party to an adjudication commences enforcement proceedings, whilst the other commences proceedings under Part 8, in order to challenge the validity of the adjudicator’s award. This duplication of effort is unnecessary and it involves the parties in extra costs, especially if the two actions are commenced at different court centres. Accordingly there should be sensible discussions between the parties or their lawyers, in order to agree the appropriate venue and also to agree who shall be claimant and who defendant. All the issues raised by each party can and should be raised in a single action.

Section 10.

Arbitration

10. 1 Arbitration Claims in the TCC

10.1.1 “Arbitration claims” are any application to the court under the Arbitration Act 1996 and any other claim concerned with an arbitration that is referred to in CPR 62.2(1). Common examples of arbitration claims are challenges to an award on grounds of jurisdiction under section 67, challenges to an award for serious irregularity under section 68 or appeals on points of law under section 69 of the Arbitration Act 1996. Arbitration claims may be started in the TCC, as is provided for in paragraph 2.3 of the Practice Direction – Arbitration which supplements CPR Part 62.

10.1.2 In practice, arbitration claims arising out of or connected with a construction or engineering arbitration (or any other arbitration where the subject matter involved one or more of the categories of work set out in paragraph 1.3.1 above) should be started in the TCC. The only arbitration claims that must be started in the Commercial Court are those (increasingly rare) claims to which the old law (i.e. the pre-1996 Act provisions) apply: see CPR rule 62.12.

10.1.3 The TCC follows the practice and procedure for arbitration claims established by CPR Part 62 and (broadly) the practice of the Commercial Court as summarised by Section O of the Admiralty and Commercial Court Guide. In the absence of any specific directions given by the court, the automatic directions set out in section 6 of the Practice Direction supplementing CPR Part 62 govern the procedures to be followed in any arbitration claim from the date of service up to the substantive hearing.

10.2 Leave to appeal

10.2.1 Where a party is seeking to appeal a question of law arising out of an award pursuant to section 69 of the Arbitration Act 1996 and the parties have not in their underlying contract agreed that such an appeal may be brought, the party seeking to appeal must apply for leave to appeal pursuant to sections 69(2), 69(3) and 69(4) of that Act. That application must be included in the arbitration claim form as explained in paragraph 12 of the Practice Direction.

10.2.2 In conformity with the practice of the Commercial Court, the TCC will normally consider any application for permission to appeal on paper after the defendant has had an appropriate opportunity to answer in writing the application being raised.

10.2.3 The claimant must include within the claim form an application for permission to appeal . No separate application notice is required.

10.2.4 The claim form and supporting documents must be served on the defendant. The judge will not consider the application for permission to appeal until (a) a certificate of service has been filed at the appropriate TCC registry or court centre and (b) a further 28 days have elapsed, so as to enable the defendant to file written evidence in opposition. Save in exceptional circumstances, the only material admissible on an application for permission to appeal is (a) the award itself and any documents annexed to the award and (b) evidence relevant to the issue whether any identified question of law is of general public importance.

10.2.5 If necessary, the judge dealing with the application will direct an oral hearing with a date for the hearing. That hearing will, ordinarily, consist of brief submissions by each party. The judge dealing with the application will announce his decision in writing or, if a hearing has been directed, at the conclusion of the hearing with brief reasons if the application is refused.

10.2.6 Where the permission has been allowed in part and refused in part:

Only those questions for which permission has been granted may be raised at the hearing of the appeal.
Brief reasons will be given for refusing permission in respect of the other questions.

10.2.7 If the application is granted, the judge will fix the date for the appeal, and direct whether the same judge or a different judge shall hear the appeal.

10.3 Appeals where leave to appeal is not required

10.3.1 Parties to a construction contract should check whether they have agreed in the underlying contract that an appeal may be brought without leave, since some construction and engineering standard forms of contract so provide. If that is the case, the appeal may be set down for a substantive hearing without leave being sought. The arbitration claim form should set out the clause or provision which it is contended provides for such agreement and the claim form should be marked “Arbitration Appeal – Leave not required”.

10.3.2 Where leave is not required, the claimant should identify each question of law that it is contended arises out of the award and which it seeks to raise in an appeal under section 69. If the defendant does not accept that the questions thus identified are questions of law or maintains that they do not arise out of the award or that the appeal on those questions may not be brought for any other reason, then the defendant should notify the claimant and the court of its contentions and apply for a directions hearing before the judge nominated to hear the appeal on a date prior to the date fixed for the hearing of the appeal. Unless the judge hearing the appeal otherwise directs, the appeal will be confined to the questions of law identified in the arbitration claim form.

10.3.3 In an appropriate case, the judge may direct that the question of law to be raised and decided on the appeal should be reworded, so as to identify more accurately the real legal issue between the parties.

10.4 The hearing of the appeal

10.4.1 Parties should ensure that the court is provided only with material that is relevant and admissible to the point of law. This will usually be limited to the award and any documents annexed to the award: see Hok Sport Ltd v Aintree Racecourse Ltd [2003] BLR 155 at 160. However, the court should also receive any document referred to in the award, which the court needs to read in order to determine a question of law arising out of the award: see Kershaw Mechanical Services Ltd v Kendrick Construction Ltd [2006] EWHC (TCC).

10.4.2 On receiving notice of permission being granted, or on issuing an arbitration claim form in a case where leave to appeal is not required, the parties should notify the court of their joint estimate or differing estimates of the time needed for the hearing of the appeal.

10.4.3 The hearing of the appeal is to be in open court unless an application (with notice) has previously been made that the hearing should be wholly or in part held in private and the court has directed that this course should be followed.

10.5 Section 68 applications – Serious Irregularity

10.5.1 In some arbitration claims arising out of construction and engineering arbitrations, a party will seek to appeal a question of law and, at the same time, seek to challenge the award under section 68 of the Arbitration Act 1996 on the grounds of serious irregularity. This raises questions of procedure, since material may be admissible in a section 68 application which is inadmissible on an application or appeal under section 69. Similarly, it may not be appropriate for all applications to be heard together. A decision is needed as to the order in which the applications should be heard, whether there should be one or more separate hearings to deal with them and whether or not the same judge should deal with all applications. Where a party intends to raise applications under both sections of the Arbitration Act 1996, they should be issued in the same arbitration claim form or in separate claim forms issued together. The court should be informed that separate applications are intended and asked for directions as to how to proceed.

10.5.2 The court will give directions as to how the section 68 and section 69 applications will be dealt with before hearing or determining any application. These directions will normally be given in writing but, where necessary or if such is applied for by a party, the court will hold a directions hearing at which directions will be given. The directions will be given following the service of any documentation by the defendant in answer to all applications raised by the claimant.

10.6 Successive awards and successive applications

10.6.1 Some construction and engineering

SECOND EDITION OF THE TECHNOLOGY AND CONSTRUCTION COURT GUIDE (issued 3rd October 2005, revised with effect from1st October 2007)

Index

Appendices

Introduction

Pre-Action Protocol

Commencement and Transfer

Access to the Court

Case Management and the First CMC

Applications after the First CMC

6.1 Relevant parts of the CPR

6.1.1 The basic rules relating to all applications that any party may wish to make are set out in CPR Part 23 and its accompanying Practice Directions.

ADR

Preliminary Issues

Adjudication Business

Arbitration

SECOND EDITION OF THE TECHNOLOGY AND CONSTRUCTION COURT GUIDE
(issued 3rd October 2005, revised with effect from1st October 2007)