Laura Lintott is a counsel at law firm Watson Farley & Williams LLP
The Technology and Construction Court (TCC) is celebrating its 150th anniversary this year. Its history is a dynamic story, starting with the Judicature Act 1873, which shifted the English court system from a duality of common law and equity to a single hierarchy of courts. It also created the office of Official Referees, which underwent a fascinating evolutionary process, eventually morphing into the TCC we know today. This process is relevant not only to those who are connected to the construction industry. It also had an innovative impact on case management in courts in general. So, what driver lies beneath the inception of the office of Official Referees, who were they and what exactly did they do?
The main task for the Official Referees was to alleviate the courts’ burden of document-heavy inquiries and investigations. As the years and decades passed, they eventually specialised in engineering, construction and technology cases. At the inception of the office of Official Referees, the law was silent on the topic of whether they should be lawyers or not. Over fifty years later, the Supreme Court of Judicature (Consolidation) Act 1925 made it clear that Official Referees had to be lawyers.
To start with, Official Referees were not treated equally to judges but it soon became clear that, to be able to do their work efficiently, they were deserving of more powers and freedoms. This development ultimately culminated in the creation of the TCC in 1998. The office of Official Referees was, at the time, such an innovation that it was bordering on scandal. The fear of the unknown, hence resistance to change, led to an initial reluctance to accept and give the appropriate respect to Official Referees. Luckily, the Official Referees quickly proved their worth and how they could benefit society.
We need to mention at least some of their innovations. Sir Francis Newbolt came up with a scheme that aimed to improve case management to save time and money, encourage settlement before a case proceeded to trial, and to build rapport between Official Referees and the solicitors appearing before them. The scheme also ensured that Official Referees had the requisite expertise to deal with construction, engineering and technology cases and introduced the idea of a single joint expert, among many other developments. Sir Francis’ vision laid the groundwork for significant reform to case management. However, it took decades for his vision to be echoed properly in Lord Woolf’s reforms.
George Scott, of course, is known for his Scott Schedule, which is used to summarise pleadings by setting out the items in dispute, their value, description of the contract or the works, the remedial work and its cost. The schedule format with columns for the parties’ comments and the Official Referees’ decision is widely used.
The present and the future
The TCC is now a specialist court dealing mainly with construction, engineering and technology disputes. Cases range from claims about services provided by professionals (including engineers, architects and surveyors) to claims about local authority duties, environment, fire and arbitration-award challenges.
The interpretation and application of the Housing Grants, Construction and Regeneration Act 1996 (later amended by the Local Democracy, Economic Development and Construction Act 2009) became a central part of the TCC’s work. The TCC’s role in the development of adjudication jurisprudence is unique. Some other more common issues the TCC deals with include enforcement, natural justice, insolvency or payment notices.
As the TCC’s aim is efficiency, it requires that, before proceedings are started, disputants comply with the Pre-Action Protocol for Construction and Engineering Disputes. The protocol is designed to push for early settlement before proceedings start, where possible, or at least for proceedings to be efficiently managed should they become inevitable.
The TCC’s evolution continues to be as rapid as ever. We live amid a whirlwind of fast-evolving technology and the TCC is open to continuous innovation. It has a market test-case procedure, a Lawtech Delivery Panel, effective e-filing and uses coding to assist the disclosure process, all saving time and money. It also has an advisory panel supporting the head of the judiciary with AI to assist settlement and decision-making. The TCC’s practical approach to ensure time- and cost-saving case management is clear.
Official Referees brought with them a sober attitude to case management. Their expertise, which eventually focused on construction, engineering and technology, meant that they have become competent decision-makers who eventually evolved into fully-fledged judges in the TCC.