Litigation

Litigation Our firm provides drafting and associated services for the submission of evidence to the court and will then recommend the most suited advocates to provide formal presentation once a hearing is convened.

To be able to use our firm in the preparation of material for court maintains a consistency in knowledge of the evidence, invaluable in a complex claim that might have previously been through an adjudication process with us and then challenged by the opposition in court proceedings.

We have detailed knowledge of the process in the Technology and Construction Court, notably ensuring compliance with the following example extracts from procedure rules stated by the court.

Note that amongst the rules the court insists that alternative dispute resolution rules are followed and in addition that certain pre-action protocols are completed, all intended to avoid litigation in court.

Considering the rules set by the court it is our experience that throughout the initial stages of litigation many claims settle before a hearing, hence it does therefore increase the probability of there being an opportunity to settle on the best terms if the claim is handled by our firm throughout because it would maintain the detail knowledge of the case.

Technology and Construction Court

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:

(a) building or other construction disputes, including claims for the enforcement of the decisions of adjudicators under the Housing Grants, Construction and Regeneration Act 1996;

(b) engineering disputes;

(c) claims by and against engineers, architects, surveyors, accountants and other specialised advisors relating to the services they provide;

(d) claims by and against local authorities relating to their statutory duties concerning the development of land or the construction of buildings;

(e) claims relating to the design, supply and installation of computers, computer software and related network systems;

(f) claims relating to the quality of goods sold or hired, and work done, materials supplied or services rendered;

(g) claims between landlord and tenant for breach of a repairing covenant;

(h) claims between neighbours, owners and occupiers of land in trespass, nuisance, etc.

(i) claims relating to the environment (for example, pollution cases);

(j) claims arising out of fires;

(k) claims involving taking of accounts where these are complicated; and

(l) 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 many other types of claim might well be appropriate for resolution in the TCC. In recent years the range of work in the TCC has become increasingly diverse, and many civil claims which are factually or technically complex are now heard in the TCC. This has included group actions for personal injury and public nuisance, and a number of procurement disputes arising in connection with the Public Contracts Regulations 2006. In addition, the TCC regularly deals with allegations of lawyers’ negligence arising in connection with planning, property, construction and other technical disputes and with applications under the Arbitration Act 1996.

In addition to the TCC in Central London, claims may be submitted to the following district registries: Birmingham, Bristol, Cardiff, Chester, Exeter, Leeds, Liverpool, Newcastle, Nottingham and Manchester. There are currently full-time TCC Judges in Birmingham and Manchester.

TCC claims may also be brought in those county courts which are specified in the Part 60 Practice Direction, and are: Birmingham, Bristol, Cardiff, Chester, Exeter, Leeds, Liverpool, Newcastle, Nottingham and Manchester.

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.

The court guide states 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.uk. Adam Mazalla-Tomlinson of our firm is a member of TECBAR.

The following Pre-Action Protocol must be complied with:

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 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 C5.

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.

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.

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

(a) is to enforce the decision of an adjudicator;

(b) includes a claim for interim injunctive relief;

(d) 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.

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 inter-party negotiations or a mediation conducted by a neutral mediator. Alternative forms of ADR include early neutral evaluation either by a judge or some other neutral person who receives a concise presentation from each party and then provides his or her own evaluation of the case.

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.

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.

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.

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:

a) the nature of the dispute;

b) the merits of the case;

c) the extent to which other settlement methods have been attempted;

d) whether the costs of the ADR would be disproportionately high;

e) whether any delay in setting up and attending the ADR would have been prejudicial;

f) whether the ADR had a reasonable prospect of success.