The Technology and Construction Court Practice and Procedure

, by Davis, Michael E.; Akenhead, Robert

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ISBN: 9780199280049 | 0199280045
Cover: Hardcover
Copyright: 11/23/2006

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Technology and Construction Court: Practice and Procedure provides a unique and authoritative guide to this specialist jurisdiction of the High Court. It examines the day-to-day workings of the Court in detail and offers practical, step-by-step guide to the practice and procedures involved in the initiating and defending of proceedings, together with expert analysis and guidance on matters unique to the Court.

Tables of Cases

xxv

Tables of Legislation

xli

List of Abbreviations

List of Law Reports

lvii

An Introduction to the Technology and Construction Court

Introduction

(14)

Why a specialist court?

(2)

The use of standard form contracts in the construction industry

(3)

Statutory intervention and regulation

(2)

The special nature of construction disputes

(6)

The Origins of the Jurisdiction of the Official Referees

(15)

Jurisdiction of the Technology and Construction Court Today

(14)

TCC judges

(6)

TCC judges as arbitrators

(3)

Change in the TCC

(10)

The Civil Procedure Rules 1998

(3)

Alternative dispute resolution

(4)

The Housing Grants, Construction and Regeneration Act 1996

(1)

The Framework of Litigation in the TCC Today

(10)

Location and facilities

(2)

The Technology and Construction Court Guide

(1)

The role of TeCSA and TECBAR

(3)

The Society of Construction Law

(1)

Reporting of TCC cases and specialist legal texts

(2)

The Future of the TCC

The Civil Procedure Rules

Introduction

(1)

The Need for Wholesale Reform of Court Procedure

(16)

Reforms leading up to the introduction of the CPR

(4)

The appointment of Lord Woolf

(2)

Lord Woolf's aims

(5)

The Civil Procedure Act 1997

(3)

The Civil Procedure Rules

(53)

The impact of the CPR generally

(4)

Key points of the CPR

(4)

The overriding objective

(3)

Proportionality

(4)

Status of authorities

(1)

Status of practice directions

(3)

Features of the new system

(1)

Changed nomenclature

(1)

Pre-Action Protocols

(7)

Allocation to a track

(1)

Statements of truth

(5)

Case management

(1)

Disclosure and pre-action disclosure

(5)

Experts and assessors

(4)

Part 36 offers

(4)

Costs

(1)

Appeals

(2)

The Need for Reform in the Hearing of Construction and Engineering Disputes

(5)

The CPR and the TCC

(2)

The Success of the CPR and the Future

Pre-Action Behaviour, the Practice Direction, and the Pre-Action Protocols

Introduction

(3)

The Practice Direction

(3)

The Pre-Action Protocol for Construction and Engineering Disputes

(14)

Cases not requiring compliance with the Protocol

(2)

Limitation

(6)

Requirement of the Protocol

(2)

The Letter of Claim

(2)

The Defendant's Acknowledgement

(1)

The Defendant's Notification of Any Objections to the Court's Jurisdiction or the Named Defendant

(4)

The Defendant's Response

(2)

The Claimant's Response to Any Counterclaim

(1)

The Pre-Action Meeting

(7)

The meeting

(4)

Settlement negotiations and the pre-action meeting

(3)

Information about Funding Arrangements

(2)

Cost Penalties for Unreasonable Failure to Comply with Protocols

(16)

Paul Thomas Construction Ltd v Hyland

(1)

Daejan Investments Ltd v Park West Club Ltd

(3)

Liverpool City Council v Rosemary Chavasse Ltd

(3)

Wealands v Harding

(2)

Northfields v DSM (Southern) Ltd

(1)

Linton v Williams Haulage Ltd

(2)

Information Technology Disputes

(9)

Housing Disrepair Claims

(2)

Relevance of Other Pre-Action Protocols

(8)

Protocol for Personal Injury Claims

(4)

Pre-Action Protocol for Disease and Illness Claims

(2)

Pre-Action Disclosure

(1)

Pre-Action Protocol Costs

The Court's Case Management Powers

Introduction

(3)

Case Management in the Official Referees

(10)

The Case Management Process under the CPR

(13)

Case Management Conferences

(6)

Steps Before the Case Management Conference

(7)

Completing the Case Management Information Sheet TCC/CM1

(3)

Completing the Case Management Directions Form TCC/CMD

(3)

The Case Management Conference

(4)

The Pre-Trial Review

(2)

Preparations for the Pre-Trial Review

(6)

Completing the Pre-Trial Review Questionnaire TCC/PTR1

(1)

The Pre-Trial Review Hearing

(8)

Case Management Powers

(5)

Security for Costs

(19)

Security for costs under CPR 25

(14)

Security under other provisions of the CPR

(4)

CPR 3.3: Power to Make Orders of Its Own Initiative

(2)

CPR 3.1(2)(a): Power to Extend Time

(3)

CPR 3.1(2)(b): Power to Adjourn Hearings

(4)

CPR 3.1(2)(c): Power to Require the Attendance of a Party

100

(1)

CPR 3.1(2)(d): Power to Hold Telephone Hearings

101

(8)

CPR 3.1(2)(e), (g), and (h): Power to Direct Separate or Consolidated Proceedings

109

(9)

CPR 3.1(2)(f): Power to Stay Proceedings or Judgment

118

(1)

CPR 3.1(2)(i), (j), and (l): Power to Direct a Separate Trial of Any Issue, etc

119

(12)

CPR 3.1(2)(k): Power to Exclude an Issue from Consideration

131

(4)

CPR 3.1(2)(m): Power to Take Any Other Step or Make Any Other Order

135

(1)

CPR 3.4: Power to Strike Out a Statement of Case

136

(42)

The relationship between CPR 3 and CPR 24

140

(9)

Striking out under CPR 3.4(2)(a)

149

(8)

Striking out under CPR 3.4(2)(b)

157

(7)

Striking out under CPR 3.4(2)(c)

164

(10)

Striking out under inherent jurisdiction

174

(1)

Alternatives to striking out

175

(3)

CPR 3.5: Judgment Without Trial after Striking Out

178

(1)

CPR 3.6: Setting Aside Judgment Entered after Striking Out

179

(1)

CPR 3.7: Sanctions for Non-Payment of Fees

180

(1)

Sanctions

181

(2)

CPR 3.9: Relief from Sanctions

183

(15)

CPR 3.9(1)(a): The interests of the administration of justice

188

(1)

CPR 3.9(1)(b): Whether the application for relief has been made promptly

189

(1)

CPR 3.9(1)(c): Whether the failure to comply was intentional

190

(1)

CPR 3.9(1)(d): Whether there is a good explanation for the failure

191

(1)

CPR 3.9(1)(e): The extent to which the party in default has complied with other rules etc

192

(1)

CPR 3.9(1)(f): Whether the failure to comply was caused by the party or his legal representative

193

(1)

CPR 3.9(1)(g): Whether the trial date or the likely trial date can still be met if relief is granted

194

(1)

CPR 3.9(1)(h): The effect which the failure to comply had on each party

195

(1)

CPR 3.9(1)(i): The effect which the granting of relief would have on each party

196

(2)

CPR 3.10: Power to Rectify Errors of Procedure

198

(2)

CPR 3.11: Power to Make Civil Restraint Orders

200

(1)

Illustrations of Case Management Generally

201

(14)

Appointment of a single joint expert

202

(5)

Alternative dispute resolution

207

(4)

Disclosure controlled by case management

211

(1)

Views

212

(1)

Case management innovation in the TCC

213

(2)

Third Party Access to the Proceedings

215

(13)

Transcript of the hearing

217

(1)

Court records

218

(10)

Future Case Management in the TCC

228

Alternative Dispute Resolution

Introduction

(2)

Contractual ADR Schemes

(12)

Exclusive Final and Binding ADR Procedures

(7)

Arbitration and pre-arbitration procedures

(2)

Valuation and expert determination

(5)

Non-Exclusive ADR Procedures to be Completed Prior to Litigation

(26)

Mediation

(3)

More than an agreement to negotiate or settle proceedings

(1)

A recognized process for mediation

(2)

Public policy

(3)

Contractual adjudication

(11)

Enforcement of adjudicators' decisions given in contractual adjudication

(6)

ADR as Part of the Litigation Process

(23)

Introduction

(2)

The duty on the parties to consider ADR

(2)

The court's duty to encourage ADR in appropriate cases

(4)

Case management and ADR in the TCC

(3)

Early Neutral Evaluation

(4)

Suggested procedure for Early Neutral Evaluation

(6)

Early Neutral Evaluation by an evaluator other than a TCC judge

(1)

Costs of Early Neutral Evaluation

(1)

Limitation

(1)

Costs in the TCC and ADR

The effect of refusal to consider an offer of ADR made following a recommendation of the court

(2)

Dunnett v Railtrack plc

(4)

Halsey v Milton Keynes General NHS Trust

(6)

The effect of failure by either party to offer ADR following a recommendation of the court

(2)

Where an offer to mediate is refused in the absence of a court's recommendation

(2)

The elements of unreasonableness

(1)

The nature of the dispute

(1)

The merits of the case

(5)

Without prejudice privilege in the Reed case

(2)

Litigation privilege in the Reed case

(2)

Whether other settlement methods have been attempted

101

(4)

Whether the cost of ADR would be disproportionate to the subject matter of the dispute

105

(2)

Whether the delay that would be incurred in appointing a mediator would have been prejudicial

107

(1)

Whether there was a reasonable prospect of ADR succeeding

108

(2)

The offeree's own intransigence

110

(4)

The character of the offeror

114

(1)

The cost implications where ADR is unsuccessful

115

Arbitration

Introduction

(3)

Extent of Court Control over Arbitrations

(8)

Arbitration Act 1996 Applications

(1)

Application for Stay of Court Proceedings (section 9)

(5)

Extension of Time for Beginning Arbitral Proceedings (section 12)

(2)

Computation of Limitation Acts Time Limits (section 13)

(1)

Court Appointment of Arbitrator (sections 17--19)

(4)

Removal of Arbitrator (section 24)

(4)

Resignation of Arbitrator (section 25)

(2)

Arbitrator's Fees and Expenses (section 28)

(1)

Court's Determination of Preliminary Jurisdiction (section 32)

(2)

Enforcement of Peremptory Orders of Arbitrators (section 42)

(1)

Securing Attendance of Witnesses and Production of Documents (section 43)

(3)

Court Powers Exercisable in Support of Arbitral Proceedings (section 44)

(6)

Determination of Preliminary Points of Law (section 45)

(1)

Extension of Time for Making Award (section 50)

(2)

Power to Withhold Award in Case of Non-Payment (section 56)

(3)

Recoverable Costs of the Arbitration (sections 63--64)

(3)

Enforcement of the Award (section 66)

(8)

Challenging the Award: Substantive Jurisdiction (section 67)

(4)

Challenging the Award: Serious Irregularity (section 68)

(6)

Appeals on Points of Law (section 69)

(8)

Supplementary Provisions (sections 70--71)

(4)

Miscellaneous Provisions

(1)

Injunctions Relating to Arbitrations

(1)

Procedures

(10)

The TCC Judge as Arbitrator

(4)

Appeals

The Proceedings

Bringing a Claim in the TCC

(27)

Where to bring claims

(2)

Transfer proceedings between the TCC and other Divisions of the High Court

(11)

Transfer proceedings between the TCC and county courts

(4)

Assignment of cases in the TCC in London

(8)

Communication with the court

(1)

Initiating Proceedings

(13)

Part 7 claims

(2)

Part 8 claims

(3)

Service of claim forms

(4)

Acknowledgement of service

(2)

Jurisdictional Challenges

(3)

Judgment in Default

(6)

Pleadings and Further Information

(15)

Scott Schedules

(12)

Counterclaims and Other Additional Claims

(9)

Summary Judgment and Interim Payment

(12)

Interim Applications and Orders Generally

(6)

Disclosure and Inspection

104

(98)

Standard and specific disclosure

107

(6)

The scope of documents to be disclosed

113

(5)

Procedure for standard disclosure

118

(2)

The disclosure statement

120

(3)

Disclosure in the TCC

123

(4)

The form of disclosure

127

(1)

Electronic disclosure

128

(9)

Specific disclosure

137

(6)

Inspection

143

(3)

Absence of control

146

(1)

Assertion of a right to withhold inspection

147

(2)

Confidentiality

149

(8)

Legal advice privilege

157

(1)

Litigation privilege

158

(5)

Without prejudice communications

163

(1)

Documents the production of which would damage the public interest

164

(2)

Refusal of disclosure on grounds of proportionality

166

(1)

Where inspection is mistakenly permitted

167

(2)

Pre-action disclosure

169

(11)

Disclosure from a third party

180

(11)

Norwich Pharmacal orders

191

(6)

Effect of failure to make disclosure

197

(3)

Subsequent use of disclosed documents

200

(2)

Evidence

202

(66)

Control of cross-examination

209

(1)

Proving documentation at trial

210

(1)

Proving the authenticity of documentation

211

(3)

Proving the accuracy of evidence out of court: hearsay evidence

214

(4)

Hearsay notices

218

(5)

Other evidence

223

(3)

Business records

226

(3)

Hearsay in the TCC

229

(7)

Witness evidence

236

(16)

Witness statements and hearsay evidence

252

(6)

Affidavits

258

(1)

Witness summonses

259

(9)

Expert Evidence

268

(98)

Expert evidence and the pre-litigation stage

272

(15)

Duties of the expert witness

287

(8)

Independence and impartiality

295

(4)

The instruction process

299

(4)

Requirements as to the form of expert evidence

303

(3)

Privilege

306

(2)

Steps in the use of expert evidence before trial in the TCC

308

(1)

Meetings between experts

309

(4)

Experts' joint statements

313

(6)

Request for directions by experts

319

(3)

Access to information

322

(2)

Replacement of experts

324

(2)

Use by one party of an expert's report disclosed by another party

326

(1)

Experts' fees

327

(2)

The court's approach to expert evidence

329

(6)

Expert evidence from witnesses of fact

335

(4)

Liability of experts in respect of their evidence

339

(3)

Single joint experts

342

(19)

Consequence of failure to disclose expert's report in accordance with court directions

361

(1)

Assessors

362

(4)

Discontinuance

366

(15)

Costs of discontinuance

374

(3)

Award of costs on an indemnity basis

377

(1)

The position after discontinuance

378

(3)

Preparations for Trial

381

(29)

Timetable for trial

382

(2)

Trial bundles

384

(3)

The delivery of trial bundles to court

387

(3)

Content of trial bundles

390

(10)

Indices to the bundles

400

(2)

The trial fee

402

(2)

Discussions with the opposing parties

404

(2)

Opening notes

406

(4)

The Trial

410

(15)

The Judgment

425

(5)

Appeals

430

(24)

Appeals from the TCC

430

(15)

The procedure on appeal

445

(7)

Powers of the Court of Appeal

452

(2)

Enforcement

454

Information about the debtor

460

(10)

Writs of fieri facias and warrants of execution

470

(16)

Interpleader proceedings

486

(13)

Third party debt orders

499

(12)

Charging orders

511

(11)

Sale of charged property

522

(4)

Stop orders

526

(3)

Stop notices

529

(4)

Enforcement of judgments for the delivery of goods

533

(7)

Receivership orders

540

(8)

Remedies available only in the county courts

548

(2)

Transfer of proceedings to the county court

550

(2)

Attachment of earnings

552

(9)

Administration orders

561

(2)

Contempt of court

563

(2)

Committal for breach of an order

565

(9)

Sequestration

574

Adjudication

Introduction

(2)

Part II of the HGCRA

(15)

The Adjudication Provisions

(5)

`Dispute'

(5)

Impartiality/Natural Justice

(8)

Issue of Adjudicator's Decision

(3)

Enforcement of Adjudicator's Decision

(15)

The Central Proceedings

(1)

Ordinary Enforcement Proceedings

(6)

Proceedings Generally

(2)

Part 8 Proceedings

(4)

Part 7 Proceedings

(1)

Acknowledgement of Service

(2)

Case Management Conference

(1)

The Witness Evidence

(5)

Part 24 Proceedings

(4)

Stay of Proceedings

(1)

Set Off and Counterclaim

(5)

Stay of Execution

(7)

Judgment

Costs

Introduction

(4)

The Definition of Costs

(5)

Control of Costs

(15)

Costs estimates

(7)

Reporting to clients of costs orders

(1)

Cost cap orders

(4)

Restrictions on cost recovery

(1)

Cost sanctions

(1)

Mechanisms of Costs Assessments

(12)

The summary assessment of costs

(9)

Detailed assessment

(1)

The Bases of Costs Awards

(32)

The general rule as to costs

(7)

Preliminary issues

(1)

Other costs considerations

(5)

Costs and the Pre-Action Protocol

(5)

Refusal to mediate

(1)

Interest on costs

(1)

The basis of assessment: standard and indemnity costs

(3)

Criteria for the award of costs on an indemnity basis

(3)

Assessment on the indemnity basis

(2)

Payments on account

(1)

The Court of Appeal

(2)

Costs of Applications for Pre-Action Disclosure

(3)

Multiple Defendants

(4)

Costs and Non-Parties

(22)

Applications for disclosure by non-parties

(2)

Other forms of order involving non-parties

(3)

Witness summonses

(1)

Non-party funders

(8)

Breach by an expert of his or her obligations

(1)

Wasted costs

(6)

Offers to Settle and Payments into Court

(345)

The effect of withdrawal of a Part 36 offer

106

(2)

Offers to settle made before commencement of proceedings

108

(1)

Form of a Part 36 offer

109

(3)

Notice of a Part 36 payment

112

(1)

Offer to settle claim for provisional damages

113

(1)

Time when a Part 36 offer or a Part 36 payment is made and accepted

114

(2)

Time for acceptance of a defendant's Part 36 offer or Part 36 payment

116

(1)

Time for acceptance of a claimant's Part 36 offer

117

(1)

Costs consequences of acceptance of a defendant's Part 36 offer or Part 36 payment

118

(3)

The effect of acceptance of a Part 36 offer or Part 36 payment

121

(2)

Payment out of a sum in court on the acceptance of a Part 36 payment

123

(3)

Restriction on disclosure of a Part 36 offer or Part 36 payment

126

(1)

Costs consequences where a claimant fails to do better than a defendant's Part 36 offer or Part 36 payment

127

(4)

Costs and other consequences where a claimant does better than it proposed on its Part 36 offer

131

(5)

Interest in respect of Part 36 offers

136

(307)

Appendix 1: High Court and Circuit Judges hearing cases in the Technology and Construction Court in London

443

(2)

Appendix 2: The Technology and Construction Court: Court Addresses and Information

445

(6)

Appendix 3: Civil Procedure Rules specific to the TCC: CPR 60 and CPR PD 60

451

(4)

Appendix 4: Court Forms used in the Technology and Construction Court

455

(14)

Appendix 5: Sample Scott Schedules

469

(4)

Appendix 6: Pre-Action Protocol for Construction and Engineering Disputes

473

(4)

Appendix 7: Pre-Action Protocol for Professional Negligence

477

(8)

Appendix 8: Relevant extracts from the Housing Grants, Construction and Regeneration Act 1996 and the Scheme for Construction Contracts Regulations

485

(14)

Appendix 9: The TCC Guide (2nd edition)

499

(46)

Appendix 10: Useful Addresses and Websites

545

(2)

Bibliography

547

(4)

Index

551

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The Technology and Construction Court Practice and Procedure

Summary

Author Biography

Table of Contents

Supplemental Materials