Date: Sun, 4 Jan 2009 21:04:33 +0000
Subject: Re: Freedom of Information request - Transfer of a small claim to the TCC Specialist Court
From: fred robinson <
[FOI #4174 email]>
To: FOI requests at HMCS <
[email address]>
Dear Sir or Madam,
YOUR DOWNLOAD
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18:22:45 +0000 From: "fred robinson"
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Dear Angels Lue Tain
Your download is still the same and needs translation
Yours sincerely,
fred robinson
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DOES NOT ANSWER MY FOI REQUEST: FIND BELOW THE TCC COURT RULES I
REFER YOU TO:
SECOND EDITION OF THE TECHNOLOGY AND CONSTRUCTION COURT GUIDE
Section 1.
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, LIVERPOOL.
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 Parts 12 and 13 (Default Judgment and Setting Aside); Part
17 (Amendments); Part 24 (Summary Judgment); Part 26 (Case
Management); Part 32 (Evidence).
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 –
a building or other construction disputes,
d claims by and against local authorities relating to their
statutory duties concerning the development of land or the
construction of buildings;
h claims between neighbours, owners and occupiers of land in
trespass, nuisance, etc. It should be noted that this list is not
exhaustive and other types of claim may well be appropriate for the
TCC.
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. “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.
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.
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 :wherever possible, such claims should be
issued in one of the following District Registries: Chester,
LIVERPOOL There are full-time TCC Judges in Liverpool and Salford
(Manchester).
In a number of regions a “TCC liaison district judge” has been
appointed. It is the function of the TCC liaison district judge:
a. 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).
c 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).
d 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 TCC claims may also be brought in those county courts which
are specified in the Part 60 Practice Direction. The specified
county courts are: CHESTER AND LIVERPOOL.
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 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.
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 Liverpool. 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
2.1.1 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:
a is to enforce the decision of an adjudicator; b includes a claim
for interim injunctive relief; c will be the subject of a claim for
summary judgmentpursuant to Part 24 of the CPR; or
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.
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.
Section 3.Commencement and Transfer
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.
3.4 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.
3.5.1 A defendant must file an acknowledgment of service in
response to both Part 7 claims 14 days after service of the claim
form.
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.
3.7.1 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”.
i 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.
ii 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.
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:
1 The size and complexity of the case. 2 The nature and importance
of any points of law arising. 3 The amount of money which is at
stake. 4 Whether the case is one of public importance. 5 Whether
the case has an international element or involves overseas parties.
6 The limited number of High Court judges and the needs of other
court users, both civil and criminal.
3.7.5 There are full time TCC judges at LIVERPOOL. 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.
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
4.1.1 There may be a number of stages during the case management
phase when the parties will make applications to the court for
particular order. 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.
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: 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.
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. 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.
4.4 Paper Applications
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.
4.4.6 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.
4.8 Lodging documents.
4.8.1 In general documents should be lodged in hard copy and not
sent by email or fax.
Section 5. Case Management and the First CMC
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:
Upon commencement of a case in the TCC, it is allocated
automatically to the multi-track. The provisions of CPR Part 29
apply to all TCC cases.
• 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, 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
1 the filing by the defendant of an acknowledgement of service or 2
the filing by the defendant of the defence or 3 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 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.
5.3.1 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. 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. 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.
5.4.1 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.
• The desirability of dealing with particular disputes by way of a
Preliminary Issue hearing.
• 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.
• The appropriate orders as to the exchange of written witness
statements. 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. 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.
• 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. 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.
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.
5.5.1 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.
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.
5.7 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.
5.8.1 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.
5.9.1 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.
6.3.1 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.
6.4.1 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.
6.5.1 The bundle for the hearing of anything other than the most
simple and straightforward application should consist of:
• the permanent case management bundle; • 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. 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.
6.8.3 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.
6.9.2 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
7.1.1 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, 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 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.
7.2.1 ADR may be appropriate before the proceedings have begun or
at any subsequent stage.
7.2.2 The TCC Pre-Action Protocl 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.
7.3.1 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 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 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.
7.4.1 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:
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.
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.
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
8.1.1 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.
8.2.1 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 The following are commonly resolved by way of a PI hearing:
a Disputes as to whether or not there was a binding contract
between the parties. b 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.
c Disputes as to the proper construction of the contract documents
or the effect of an exclusion or similar clause.
d Disputes as to the correct application of a statute or binding
authority to a situation where there is little or no factual
dispute.
e Disputes as to the existence and/or scope of a statutory duty .
f 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.
8.4.3 ‘One-Off’ Issues. Issues which do not fall into any obvious
category, like misrepresentation, may be suitable for resolution by
way of a PI hearing, particularly if the whole case can be shown to
turn on them.
8.5.1 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.
8.6.1 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.
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:
a Only those questions for which permission has been granted may be
raised at the hearing of the appeal.
b 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.
Section 11. Disclosure
11.1.1 The appropriate disclosure and inspection orders to be made
will normally be considered and made at the first case management
conference. This is governed by CPR Part 31 and the Practice
Direction supplementing it. This procedure provides for standard
disclosure, being disclosure and inspection in accordance with CPR
Part 31 of:
a the documents upon which a party relies;
b the documents which adversely affect his or another party’s case
or support another party’s case; and
c the documents which a party is required to disclose by any
relevant practice direction.
11.2 Limiting disclosure and the cost of disclosure
11.2.1 In many cases being conducted in the TCC, standard
disclosure will not be appropriate. This may for any one or more of
the following reasons:
(a) The amount of documentation may be considerable, given the
complexity of the dispute and the underlying contract or contracts,
and the process of giving standard disclosure may consequently be
disproportionate to the issues and sums in dispute.
(b) The parties may have many of the documents in common from their
previous dealings so that disclosure is not necessary or desirable.
(c) The parties may have provided informal disclosure and
inspection of the majority of these documents, for example when
complying with the pre-action Protocol.
(d) The cost of providing standard disclosure may be
disproportionate.
In such cases, the parties should seek to agree upon a more limited
form of disclosure or to dispense with formal disclosure
altogether. Such an agreement could limit disclosure to specified
categories of documents or to such documents as may be specifically
applied for.
11.2.2 Where disclosure is to be provided, the parties should
consider whether it is necessary for lists of documents to be
prepared or whether special arrangements should be agreed as to the
form of listing and identifying disclosable documents, the method,
timing and location of inspection and the manner of copying or
providing copies of documents. Thought should also be given to
providing disclosure in stages or to reducing the scope of
disclosure by providing the relevant material in other forms.
11.2.4 All these matters should be agreed between the parties. If
it is necessary to raise any of these matters with the court they
should be raised, if possible, at the first CMC. If points arise on
disclosure after the first CMC, they may well be capable of being
dealt with by the court on paper.
11.3.1 The parties should consult with each other before the first
CMC. Where agreement is not possible, the parties should raise
these matters for decision at a CMC.
Section 14. The Pre-Trial Review
14.1.1 The Pre-Trial Review (“PTR”) will usually be fixed for a
date that is 4-6 weeks in advance of the commencement of the trial
itself. It is vital that the advocates, who are going to conduct
the trial, should attend the PTR and every effort should be made to
achieve this. It is usually appropriate for the PTR to be conducted
by way of an oral hearing or, at the very least, a telephone
conference.
14.2 Documents
14.2.1 The parties must complete the PTR Questionnaire and return
it in good time to the court. In addition, the judge may order the
parties to provide other documents for the particular purposes of
the PTR.
14.2.2 In an appropriate case, the advocates for each party should
prepare a Note for the PTR, which addresses:
2 the issues for determination at the trial;
4 These Notes should be provided to the court by 4 p.m. one clear
working day before the PTR.
14.2.3 The parties should also ensure that, for the PTR, the court
has an up-to-date permanent case management bundle, together with a
bundle of the evidence (factual and expert) that has been
exchanged. This Bundle should also be made available to the court
by 4 p.m. one clear day before the PTR.
14.3.1 It can sometimes be the case that there are still
outstanding interlocutory steps to be taken at the time of the PTR.
That will usually mean that one, or more, of the parties has not
complied with an earlier direction of the court. In that event, the
court is likely to require prompt compliance, and may make costs
orders to reflect the delays.
14.3.2 Sometimes a party will wish to make an application to be
heard at the same time as the PTR. Such a practice is
unsatisfactory, because it uses up time allocated for the PTR, and
it gives rise to potential uncertainty close to the trial date. It
is always better for a party, if it possibly can, to make all
necessary applications well in advance of the PTR. If that is not
practicable, the court should be asked to allocate additional time
for the PTR, in order to accommodate specific applications. If
additional time is not available, such applications will not
generally be entertained.
14.4.1 The parties should, if possible, provide the judge at the
PTR with an agreed list of the Issues for the forthcoming trial.
14.4.2 If the parties are unable to agree the precise formulation
of the issues, they should provide to the court their respective
contentions as to what the issues are, and why.
14.4.3 In order to determine the best way to deal with the trial,
it is necessary for the issues to be identified. If the precise
formulation of the issues is a matter of dispute between the
parties, the judge will note the parties’ respective contentions,
but is unlikely to give a ruling on this matter at the PTR.
14.5.1 Much of the PTR will be devoted to a consideration of the
appropriate timetable for the trial, and other logistical matters.
These will commonly include:
• Directions in respect of oral and written openings.
• Sequence of oral evidence; for example, whether all the factual
evidence should be called before the expert evidence.
• Timetabling of oral evidence. (To facilitate this exercise, the
advocates should tell the judge which witnesses need to be
cross-examined and which evidence can be agreed.)
• Whether any form of time limits should be imposed. (Since the
purpose of time limits is to ensure that that the costs incurred
and the resources devoted to the trial are proportionate, this is
for the benefit of the parties. The judge will endeavour to secure
agreement to any time limits imposed.)
• Directions in respect of the trial bundle: when it should be
agreed and lodged; the contents and structure of the bundle;
avoidance of duplication; whether witness statements and/or expert
reports should be annotated with cross references to page numbers
in the main bundle (see paragraph 12.3 above); and similar matters.
• Whether there should be a core bundle; if so how it should be
prepared and what it should contain.
• Any directions relating to the use of simultaneous transcription
at trial (this subject to agreement between the parties).
14.5.2 The topics identified in paragraph 14.5.1 are discussed in
greater detail in section 15 below.
The Trial
15.1.1 Prior to the trial the parties’ legal representatives should
seek to agree on the following matters, in so far as they have not
been resolved at the PTR: the order in which witnesses are to be
called to give evidence; which witnesses are not required for cross
examination and whose evidence in consequence may be adduced
entirely from their witness statements; the timetable for the trial
and the length of time each advocate is to be allowed for a brief
opening speech. When planning the timetable, it should be noted
that trials normally take place on Mondays to Thursdays, since
Fridays are reserved for applications.
15.2.1 Opening notes. Unless the court has ordered otherwise, each
party’s advocate should provide an opening note, which outlines
that party’s case in relation to each of the issues identified at
the PTR. Each opening note should indicate which documents (giving
their page numbers in the trial bundle) that party considers that
the judge should pre-read. The claimant’s opening note should
include a neutral summary of the background facts, as well as a
chronology and cast list. The other parties’ opening notes should
be shorter and should assume familiarity with the factual
background. In general terms, all opening notes should be of modest
length and proportionate to the size and complexity of the case.
Subject to any specific directions at the PTR, the claimant’s
opening note should be served two clear working days before the
start of the trial; the other parties opening notes should be
served by 1 p.m. on the last working day before the trial.
15.2.2 Trial bundles. Subject to any specific directions at the
PTR, the trial bundles should be delivered to court at least three
working days before the hearing. It is helpful for the party
delivering the trial bundles to liaise in advance with the judge’s
clerk, in order to discuss practical arrangements, particularly
when a large number of bundles are to be delivered. The parties
should provide for the court an agreed index of all trial bundles.
There should also be an index at the front of each bundle. This
should be a helpful guide to the contents of that bundle. (An
interminable list, itemising every letter or sheet of paper is not
a helpful guide. Nor are bland descriptions, such as “exhibit
“JT3”, of much help to the bundle user.) The spines of bundles
should be clearly labelled.
15.2.3 As a general rule the trial bundles should be clearly
divided between statements of case, orders, contracts, witness
statements, expert reports and correspondence/ minutes of meetings.
The correspondence/ minutes of meetings should be in a separate
bundle or bundles and in chronological order. Documents should only
be included, if they are relevant to the issues in the case or
helpful as background material. Documents should not be duplicated.
Exhibits to witness statements should generally be omitted, since
the documents to which the witnesses are referring will be found
elsewhere in the bundles. The bundles of contract documents and
correspondence/ minutes of meetings should be paginated, so that
every page has a discrete number. The other bundles could be dealt
with in one of two ways:
• The statements of case, witness statements and expert reports
could be placed in bundles and continuously paginated. •
Alternatively, the statements of case, witness statements and
expert reports could be placed behind tabbed divider cards, and
then the internal numbering of each such document can be used at
trial. If the latter course is adopted, it is vital that the
internal page numbering of each expert report continues
sequentially through the appendices to that report.
The ultimate objective is to create trial bundles, which are user
friendly and in which any page can be identified with clarity and
brevity (e.g. “bundle G page 273” or “defence page 3” or “Dr Smith
page 12”). The core bundle, if there is one (as to which see
paragraph 14.5.1 above), will be a separate bundle with its own
pagination
15.2.4 Opening speeches. Subject to any directions made at the PTR,
each party will be permitted to make an opening speech. These
speeches should be prepared and presented on the basis that the
judge will have pre-read the opening notes and the documents
identified by the parties for pre-reading. The claimant’s advocate
may wish to highlight the main features of the claimant’s case
and/or to deal with matters raised in the other parties’ opening
notes. The other parties’ advocates will then make shorter opening
speeches, emphasising the main features of their own cases and/or
responding to matters raised in the claimant’s opening speech.
15.2.5 It is not usually necessary or desirable to embark upon
legal argument during opening speeches. It is, however, helpful to
foreshadow those legal arguments which (a) explain the relevance of
particular parts of the evidence or (b) will assist the judge in
following a party’s case that is to be presented during the trial.
15.2.6 Narrowing of issues. Experience shows that often that the
issues between the parties progressively narrow as the trial
advances. Sometimes this process begins during the course of
opening speeches. Weaker contentions may be abandoned and responses
to those contentions may become irrelevant. The advocates will
co-operate in focussing their submissions and the evidence on the
true issues between the parties, as those issues are thrown into
sharper relief by the adversarial process.
15.3.1 Many trials in the TCC, including the great majority of the
longer trials, are conducted with simultaneous transcripts of the
evidence being provided. There are a number of transcribing systems
available. It is now common for a system to be used involving
simultaneous transcription onto screens situated in court. However,
systems involving the production of the transcript in hard or
electronic form at the end of the day or even after a longer period
of time are also used. The parties must make the necessary
arrangements with one of the companies who provide this service.
The court can provide a list, on request, of all companies who
offer such a service.
15.3.2 In long trials or those which involve any significant amount
of detailed or technical evidence, simultaneous transcripts are
helpful. Furthermore, they enable all but the shortest trials to be
conducted so as to reduce the overall length of the trial
appreciably, since the judge does not have to note the evidence or
submissions in longhand as the trial proceeds. Finally, a
simultaneous transcript makes the task of summarising a case in
closing submissions and preparing the judgment somewhat easier. It
reduces both the risk of error or omission and the amount of time
needed to prepare a reserved judgment.
15.3.3 If possible, the parties should have agreed at or before the
PTR whether a simultaneous transcript is to be employed. It is
usual for parties to agree to share the cost of a simultaneous
transcript as an interim measure pending the assessment or
agreement of costs, when this cost is assessable and payable as
part of the costs in the case. Sometimes, a party cannot or will
not agree to an interim cost sharing arrangement. If so, it is
permissible for one party to bear the cost, but the court cannot be
provided with a transcript unless all parties have equal access to
the transcript. Unlike transcripts for use during an appeal, there
is no available means of obtaining from public funds the cost of a
transcript for use at the trial.
15.4.1 Generally trials in the TCC are conducted under some form of
time limit arrangement. Several variants of time limit arrangements
are available, but the TCC has developed the practice of imposing
flexible guidelines in the form of directions as to the sharing of
the time allotted for the trial. These are not mandatory but an
advocate should ordinarily be expected to comply with them.
15.4.2 The practice is, in the usual case, for the court to fix, or
for the parties to agree, at the PTR or before trial an overall
length of time for the trial and overall lengths of time within
that period for the evidence and submissions. The part of those
overall lengths of time that will be allocated to each party must
then be agreed or directed.
15.4.3 The amount of time to be allotted to each party will not
usually be the same. The guide is that each party should have as
much time as is reasonably needed for it to present its case and to
test and cross examine any opposing case, but no longer.
15.4.4 Before the trial, the parties should agree a running order
of the witnesses and the approximate length of time required for
each witness. A trial timetable should be provided to the court
when the trial starts and, in long trials, regularly updated.
15.4.5 The practice of imposing a strict guillotine on the
examination or cross examination of witnesses, is not normally
appropriate. Flexibility is encouraged, but the agreed or directed
time limits should not ordinarily be exceeded without good reason.
It is unfair on a party, if that party’s advocate has confined
cross-examination to the agreed time limits, but an opposing party
then greatly exceeds the corresponding time limits that it has been
allocated.
15.4.6 An alternative form of time limit, which is sometimes agreed
between the parties and approved by the court, is the “chess clock
arrangement”. The available time is divided equally between the
parties, to be used by the parties as they see fit. Thus each side
has X hours. One representative on each side operates the chess
clock. The judge has discretion “to stop the clock” in exceptional
circumstances. A chess clock arrangement is only practicable in a
two-party case.
15.5.1 Evidence in chief is ordinarily adduced by the witness
confirming on oath the truth and accuracy of the previously served
witness statement or statements. A limited number of supplementary
oral questions will usually be allowed (a) to give the witness an
opportunity to become familiar with the procedure and (b) to cover
points omitted by mistake from the witness statement or which have
arisen subsequent to its preparation.
15.5.2 In some cases, particularly those involving allegations of
dishonest, disreputable or culpable conduct or where significant
disputes of fact are not documented or evidenced in writing, it is
desirable that the core elements of a witness’s evidence-in-chief
are given orally. The giving of such evidence orally will often
assist the court in assessing the credibility or reliability of a
witness.
15.5.3 If any party wishes such evidence to be given orally, a
direction should be sought either at the PTR or during the openings
to that effect. Where evidence in chief is given orally, the rules
relating to the use of witness statements in cross-examination and
to the adducing of the statement in evidence at any subsequent
stage of the trial remain in force and may be relied on by any
party.
15.5.4 It is usual for all evidence of fact from all parties to be
adduced before expert evidence and for the experts to give evidence
in groups with all experts in a particular discipline giving their
evidence in sequence. Usually, but not invariably, the order of
witnesses will be such that the claimant’s witnesses give their
evidence first, followed by all the witnesses for each of the other
parties in turn. If a party wishes a different order of witnesses
to that normally followed, the agreement of the parties or a
direction from the judge must be obtained in advance.
15.5.6 The coaching of witnesses or the suggestion of answers that
may be given, before that witness starts to give evidence, is not
permitted. Any prior discussion between the lawyers and the witness
about the giving of evidence should be confined to factual
information about the evidence-giving process. In short, witness
familiarisation is permissible, but witness coaching is not. The
boundary between witness familiarisation and witness coaching is
discussed by the Court of Appeal in R v Momodou [2005] EWCA Crim
177 at [61] – [62]. Once a witness has started giving evidence, he
cannot discusss the case or his evidence either with the lawyers or
with anyone else until he has finally left the witness box.
Occasionally a dispensation is needed (for example, an expert may
need to participate in an experts’ meeting about some new
development). In those circumstances the necessary dispensation
will either be agreed between the advocates or ordered by the
judge.
15.6.1 Submissions and legal argument should be kept to a minimum
during the course of the trial. Where these are necessary, (a) they
should, where possible, take place when a witness is not giving
evidence and (b) the judge should be given forewarning of the need
for submissions or legal argument. Where possible, the judge will
fix a time for these submissions outside the agreed timetable for
the evidence.
15.7.1 The appropriate form of closing submissions can be
determined during the course of the trial. Those submissions may
take the form of (a) oral closing speeches or (b) written
submission alone or (c) written submissions supplemented by oral
closing speeches. In shorter or lower value cases, oral closing
speeches immediately after the evidence may be the most cost
effective way to proceed. Alternatively, if the evidence finishes
in the late afternoon, a direction for written closing submissions
to be delivered by specified (early) dates may avoid the cost of a
further day’s court hearing. In longer and heavier cases the judge
may (in consultation with the advocates) set a timetable for the
delivery of sequential written submissions (alternatively, an
exchange of written submissions) followed by an oral hearing. In
giving directions for oral and/or written closing submissions, the
judge will have regard to the circumstances of the case and the
overriding objective.
15.7.2 It is helpful if, in advance of preparing closing
submissions, the parties can agree on the principal topics or
issues that are to be covered. It is also helpful for the written
and oral submissions of each party to be structured so as to cover
those topics in the same order.
15.7.3 It is both customary and helpful for the judge to be
provided with a photocopy of each authority and statutory provision
that is to be cited in closing submissions.
15.8 Views
15.8.1 It is sometimes necessary or desirable for the judge to be
taken to view the subject-matter of the case. In normal
circumstances, such a view is best arranged to take place
immediately after the openings and before the evidence is called.
However, if the subject matter of the case is going to be covered
up or altered prior to the trial, the view must be arranged
earlier. In that event, it becomes particularly important to avoid
a change of judge. Accordingly, the court staff will note on the
trial diary the fact that the assigned judge has attended a view.
In all subsequent communications between the parties and court
concerning trial date, the need to avoid a change of judge must be
borne firmly in mind.
15.8.2 The matters viewed by the judge form part of the evidence
that is received and may be relied on in deciding the case.
However, nothing said during the view to (or in the earshot of) the
judge, has any evidential status, unless there has been an
agreement or order to that effect.
15.8.3 The parties should agree the arrangements for the view and
then make those arrangements themselves. The judge will ordinarily
travel to the view unaccompanied and, save in exceptional
circumstances when the cost will be shared by all parties, will not
require any travelling costs to be met by the parties.
15.9 Judgments
15.9.1 Depending on the length and complexity of the trial, the
judge may (a) give judgment orally immediately after closing
speeches; (b) give judgment orally on the following day or soon
afterwards; or (c) deliver a reserved judgment in writing at a
later date.
15.9.2 Where judgment is reserved. The judge will normally indicate
at the conclusion of the trial what arrangements will be followed
in relation to (a) the making available of any draft reserved
judgment and (b) the handing down of the reserved judgment in open
court. If a judgment is reserved, it will be handed down as soon as
possible. Save in exceptional circumstances, any reserved judgment
will be handed down within 3 months of the conclusion of the trial.
Any enquiries as to the progress of a reserved judgment should be
addressed in the first instance to the judge’s clerk, with notice
of that enquiry being given to other parties. If concerns remain
following the judge’s response to the parties, further enquiries or
communication should be addressed to the judge in charge of the
TCC.
15.9.3 If the judge decides to release a draft judgment in advance
of the formal hand down, this draft judgment will be confidential
to the parties and their legal advisers. Solicitors and counsel on
each side should send to the judge a note (if possible, agreed) of
any clerical errors or slips which they note in the judgment.
However, this is not to be taken as an opportunity to re-argue the
issues in the case.
15.10 Disposal of judge’s bundle after conclusion of the case
15.10.1 The judge will have made notes and annotations on the
bundle during the course of the trial. Accordingly, the normal
practice is that the entire contents of the judge’s bundle are
disposed of as confidential waste. The empty ring files can be
recovered by arrangement with the judge’s clerk.
15.10.2 If any party wishes to retrieve from the judge’s bundle any
particular items of value which it has supplied (e.g. plans or
photographs), a request for these items should be made to the
judge’s clerk promptly at the conclusion of the case. If the judge
has not made annotations on those particular items, they will be
released to the requesting party.
16.2 Summary Assessment of Costs
16.2.1 Interlocutory hearings that last one day or less will
usually be the subject of a summary assessment of costs in
accordance with CPR 44.7 and section 13 of the Costs Practice
Direction. The parties must ensure that their statements of costs,
on which the summary assessment will be based, are provided to each
other party, and the Court, no later than 24 hours before the
hearing in question: see paragraph 6.9.3 above.
16.2.2 The Supreme Court Costs Office Guide to the Summary
Assessment of Costs sets out clear advice and guidance as to the
principles to be followed in any summary assessment. Generally
summary assessment proceeds on the standard basis. In making an
assessment on the standard basis, the court will only allow a
reasonable amount in respect of costs reasonably incurred and any
doubts must be resolved in favour of the paying party.
16.2.3 In arguments about the hourly rates claimed, the judge will
have regard to the principles set out by the Court of Appeal in
Wraith v Sheffield Forgemasters Ltd [1998] 1 WLR 132: i.e. the
judge will consider whether the successful party acted reasonably
in employing the solicitors who had been instructed and whether the
costs they charged were reasonable compared with the broad average
of charges made by similar firms practising in the same area.
16.2.4 In addition, when considering hourly rates, the judge in the
TCC may have regard to the guideline rates published from time to
time by TecSA.
16.2.5 The court will also consider whether unnecessary work was
done or an unnecessary amount of time was spent on the work.
16.3.1 In exercising case management powers, the judge may make
costs cap orders which, in normal circumstances, will be
prospective only. He should only do so, however, where there is a
real and substantial risk that, without such an order:
a costs will be disproportionately or unreasonably incurred and b
such costs cannot be controlled by conventional case management and
a detailed assessment of costs after a trial, and
c it is just to make such an order.
See CPR rule 3.1 and the notes to that rule in the White Book
headed “Prospective costs cap orders”.
16.3.2 The possibility of a costs cap order should be considered at
the first CMC. The later such an order is sought, the more
difficult it may be to impose an effective costs cap.
Section 17. Enforcement
17.1.1 The TCC is concerned with the enforcement of judgments and
orders given by the TCC and with the enforcement of adjudicators’
decisions and arbitrators’ awards. Adjudication and arbitration
enforcement have been dealt with in, respectively, sections 9 and
10 above.
17.2.2 Outside London. Where the judgment or order in respect of
which enforcement is sought was made by a judge of the TCC out of
London, the party seeking enforcement should use the Registry of
the court in which the judgment or order was made.
17.2.3 Where orders are required or sought to support enforcement
of a TCC judgment or order, a judge of the TCC is the appropriate
judge for that purpose. If available, the judge who gave the
relevant judgment or made the relevant order is the appropriate
judge to whom all applications should be addressed.
17.4.1 Where the application or order is unopposed or does not
involve any substantial dispute, the necessary order should be
sought by way of a paper application.
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
Appendix A
Case Management Information Sheet
This Appendix is the same as Appendix A to the Part 60 Practice
Direction
[
http://www.dca.gov.uk/civil/procrules_fin/contents/practice_directions/pd_part60.htm].
In electronic versions of the TCC Guide it is not possible to copy
this Appendix. Practitioners should refer either to the Part 60
Practice Direction or to published hard copies of this Guide.
Appendix B
Case Management Directions Form
Action no HT-………….
Delete or amend the following directions, as appropriate to the
circumstances of the case.
1 Trial date ……………….. For the purposes of payment of the trial fee,
but for no other purposes, this date is provisional. This date will
cease to be provisional and the trial fee will become payable on …
[usually be 2 months before the trial date]. 2 Estimated length of
trial ………………. 3 Directions, if appropriate, (a) for the trial of
any preliminary issues or (b) for the trial to be divided into
stages … 4 This action is to be [consolidated] [managed and tried
with] action no … The lead action shall be … All directions given
in the lead action shall apply to both actions, unless otherwise
stated. 5 Further statements of case shall be filed and served as
follows: • Defence and any counterclaim by 4 p.m. on … • Reply (if
any) and defence to counterclaim (if any) by 4 p.m. on … 6
Permission to make the following amendments … 7 Disclosure of
documents by 5 p.m. on … [Standard disclosure dispensed with/
limited/ varied as follows …]. Specific directions in respect of
electronic disclosure … 8 There shall be a Scott Schedule in
respect of defects/ items of damage/ other … • The column headings
shall be as follows … • Claimant/ defendant to serve Scott Schedule
by 5 p.m. on … • Defendant/ claimant to respond to Scott Schedule
by 5 p.m. on …
9 Signed statements of witnesses of fact to be served by 5 p.m. on
…
10 [Supplementary statements of witnesses of fact to be served by 5
p.m. on …]
11 The parties have permission to call the following expert
witnesses in respect of the following issues: • … • … • …
12 In respect of any expert evidence permitted under paragraph 10:
• Directions for carrying out inspections/ taking samples/
conducting experiments/ performance of calculations shall be … •
Experts in like fields to hold discussions in accordance with rule
35.12 by … • Experts’ statements rule 35.12 (3) to be prepared and
filed by 5 p.m. on … • Experts’ reports to be served by 5 p.m. on …
13 A single joint expert shall be appointed by the parties to
report on the following issue(s) …. The following directions shall
govern the appointment of the single joint expert: • …. • ….
14 The following documents shall be provided to the court
electronically or in computer readable form, as well as in hard
copy …
15 A review case management conference shall be held on … at …a.m./
p.m. Time allowed …
16 The pre-trial review shall be held on … at ... a.m./p.m. Time
allowed …
17 The above dates and time limits may be extended by agreement
between the parties. Nevertheless: • The dates and time limits
specified in paragraphs … may not be extended by more than … days
without the permission of the court. • The dates specified in
paragraph 1 (trial) and paragraph 15 (pre-trial review) cannot be
varied without the permission of the court.
18 Liberty to restore.
19 Costs in the case.
20 Claimant’s solicitors to draw up this order by … [Delete if
order is to be drawn up by the court.]
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Appendix C
Pre-Trial Review Questionnaire
This Appendix is the same as Appendix C to the Part 60 Practice
Direction
[
http://www.dca.gov.uk/civil/procrules_fin/contents/practice_directions/pd_part60.htm#IDA3JGWB].
In electronic versions of the TCC Guide it is not possible to copy
this Appendix. Practitioners should refer either to the Part 60
Practice Direction or to published hard copies of this Guide.
Appendix D
Contact Details for Technology and Construction Court
The High Court of Justice, Queen’s Bench Division, Technology and
Construction Court
St Dunstan’s House 133-137 Fetter Lane London EC4A 1HD
(a) Management
Court Manager: Mr Steven Gibbon
Case Administration Unit Manager/Registry Manager: Steven Gibbon
([email address])
Registry: Tel: 020 7947 6022 Fax: 020 7947 7428
Case Administration Unit: Tel: 020 7947 7156 Fax: 020 7947 6465
(b) TCC Judges
Mr Justice Ramsey Clerk: Mr David Hamilton
([email address]) Tel: 0207 947 6331
Fax: 0207 073 4701 Mr Justice Jackson (until replaced) Clerk:
Olivia Jay ([email address]) Tel: 0207 947
6484 His Honour Judge Anthony Thornton QC Clerk: Ms Anne Farrelly
([email address]) Tel: 020 7947 6457 His
Honour Judge David Wilcox Clerk: Ms Pam Gilham
([email address]) Tel: 020 7947 6450 His
Honour Judge John Toulmin CMG QC Clerk: Steven Gibbon
([email address]) Tel:020 7947 6498 His
Honour Judge Peter Coulson QC Clerk: Mr Steve Jones
([email address]) Tel: 020 7947 6547 •
The following five High Court Judges will be available, when
necessary and by arrangement with the Vice-President of the Queen’s
Bench Division, to sit in the TCC:
Mr Justice Burton
Mr Justice Elias
Mr Mr Justice Field
Mr Justice Ouseley
Mr Justice Simon
Mr Justice Christopher Clarke
Mr Justice Teare • The Case Administration Unit, headed by Steven
Gibbon, administers cases classified as “HCJ” (see section 3.7 of
guide).
Birmingham District Registry: Birmingham County Court
33 Bull Street Birmingham West Midlands B4 6DS
TCC listing and clerk to HH Judge Kirkham: Peter Duke
([email address])
Tel: 0121 681 3181 Fax: 0121 681 3121
TCC Judges
Her Honour Judge Frances Kirkham (full time TCC Judge)
His Honour Judge Stephen Davies (Half TCC & half County Court)
His Honour Judge Simon Brown QC (Mercantile Judge)
Her Honour Judge Caroline Alton (Mercantile Judge)
His Honour Judge Alastair Norris Q.C (Chancery Judge)
His Honour Judge Charles Purle QC (Chancery Judge)
Other judges in Birmingham who have been nominated to deal with TCC
business are: His Honour Judge MacDuff Q.C.
Bristol District Registry: Bristol County Court TCC Listing Office
The Law Courts Small Street Bristol BS1 1DA
TCC Listing officers: Dan Cuthbertson and Priya Patel
Email:
[email address] Tel: 0117 910 6700 Fax: 0117 910 6727
TCC Judges
His Honour Judge Mark Havelock-Allan QC (principal TCC judge)
His Honour Judge Patrick McCahill QC
Cardiff District Registry: Cardiff County Court
Cardiff Civil Justice Centre 2 Park Street Cardiff CF10 1 ET
Main switchboard: 02920 376 400 Fax: 02920 376 475 Listing office:
02920 376 412
Circuit Judges Listing Manager: Graham Driver
Tel: 02920 376483,
[email address] Specialist Listing Officer: Tracey Davies
Tel: 02920 376412,
[email address] TCC Judges
His Honour Judge Gary Hickinbottom (principal TCC judge)
His Honour Judge Nicholas Chambers QC
Central London Civil Justice Centre
26 Park Crescent,
London WIN 4HT
Listing office for TCC, Chancery and Mercantile Courts
Tel: 0207 917 7932 / 7933
Chancery and Specialist Section Manager: Ms Kathlyn Antoine
Tel: 0207 917 7889/ 7821 Fax: 0207 917 7935
TCC Judges
His Honour Judge Brian Knight QC (principal TCC judge)
His Honour Judge Paul Collins CBE
His Honour Judge Edward Bailey
Chester District Registry: Chester County Court The Chester Civil
Justice Centre Trident House Little St John Street Chester CH1 1SN<
br/>
Diary Manager: Julie Burgess
Email:
[email address] Tel: 01244 404200 Fax: 01244 404300
TCC Judge
HIS HONOUR JUDGE DEREK HALBERT
Exeter District Registry: Exeter County Court Southernhay Gardens
Exeter Devon England EX1 1UH
Tel: 01392 415350 Fax: 01392 415645
TCC Judge
His Honour Judge Jeremy Griggs
Leeds Combined Court Centre The Courthouse Oxford Row Leeds LS1 3BG
High Court Civil Listing Officers: David Eaton and Terence
Pendlebury
Tel: 0113 306 2440/2441 Fax: 0113 242 6380
e-mail:
[email address] TCC Judges
His Honour Judge John Cockroft (principal TCC judge)
His Honour Judge John Behrens
His Honour Judge Peter Langan QC
His Honour Judge Simon Grenfell
His Honour Judge Simon Hawkesworth QC
His Honour Judge Kaye QC
Leicester District Registry: Leicester County Court 90 Wellington
Street Leicester LE1 6HG
Tel : 0116 222 5700 Fax: 0116 222 5763
TCC Judge
His Honour Judge David Brunning
Liverpool District Registry: Liverpool Combined Court Centre
Liverpool Civil & Family Courts 35 Vernon Street Liverpool L2 2BX
TCC listing officer: Jackie Jones
Tel: 0151 296 2444 Fax: 0151 295 2201
TCC Judges
HIS HONOUR JUDGE DAVID MAKAY (full time TCC judge)
His HIS HONOUR STEPHEN STEWART JUDGE QC
His Honour Judge Graham Platt
Mold County Court Law Courts Civic Centre Mold Flintshire Wales CH7
1AE
TCC listing officer: Selina Wilkes
Tel: 01352 707405 Fax: 01352 753874
TCC Judges
Will attend from Cardiff when required
Newcastle upon Tyne Combined Court Centre The Law Courts Quayside
Newcastle upon Tyne NE1 3LA
Tel: 0191 201 2029
Listing Officer: Mrs Carol Gallagher
[email address] Tel: 0191 201 2047 Fax: 0191 201 2001
TCC Judges
His Honour Judge Christopher Walton
District Judge Atherton
Nottingham District Registry: Nottingham County Court 60 Canal
Street Nottingham NG1 7EJ
Tel 0115 910 3500 Fax: 0115 910 3510
TCC Judge
His Honour Judge Richard Inglis
Salford District Registry: SalfordCounty Court Prince William House
Peel Cross Road Salford M5 4RR
TCC clerks: Isobel Rich and David Fernandez
Tel: 0161 745 7511 Fax: 0161 745 7202
e-mail:
[email address] TCC Judges
His Honour Judge David Gilliland QC (full time TCC judge)
His Honour Judge Philip Raynor QC (full time TCC judge)
The following judges at Manchester are nominated to deal with TCC
business: His Honour Judge Brendan Hegarty QC, His Honour Judge
David Hodge QC, His Honour Judge Mark Pelling QC and His Honour
Judge David Waksman QC.
Sheffield Combined Court Centre The Law Courts 50 West Bar
Sheffield S3 8PH
Tel: 0114 281 2419 Fax: 0114 281 2585
TCC Judge
His Honour Judge John Bullimore
Winchester Combined Court Centre The Law Courts Winchester
Hampshire SO23 9EL
Diary Manager: Mr Wayne Hacking – email
[email address] Tel: 023 8021 3254
Civil Listing Officer: Mrs Karen Hart – email
[email address] Tel: 01962 814 113 Switchboard: 01962 814100 Fax: 01962 814260
TCC Judge
His Honour Judge Iain Hughes QC
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Appendix E
Draft ADR Order 1 By [ ] the parties shall exchange lists of three
neutral individuals who have indicated their availability to
conduct a mediation/ENE in this case prior to [ ]. 2 By [ ] the
parties shall agree an individual from the exchanged lists to
conduct the mediation/ENE by [ ]. If the parties are unable to
agree on the neutral individual, they will apply to the Court in
writing by [ ] and the Court will choose one of the listed
individuals to conduct the mediation/ENE.
3 There will be a stay of the proceedings until [ ] to allow the
mediation/ENE to take place.On or before that date, the Court shall
be informed as to whether or not the case has been finally settled.
If it has not been finally settled, the parties will:
a comply with all outstanding directions made by the Court; b
attend for a review CMC on [ ].
Appendix F
Draft Directions in Adjudication Enforcement Proceedings
Upon reading the Claim Form, Particulars of Claim, the Claimant’s
without notice application dated the day of 200 and the evidence in
support thereof
IT IS ORDERED THAT:
1 The Claimant’s solicitor shall [as soon as practicable after
receipt of this Order/ by 4pm on day of ] serve upon the Defendant
a The Claim Form and Response Pack b This Order c The Claimant’s
Application Pursuant to Part 24 and the Claimant’s evidence in
support. 2 The time for the Defendant to file its acknowledgement
of service is abridged to [ ] days. 3 The Claimant hereby has
permission to issue an application pursuant to CPR Part 24 without
an acknowledgement of service or Defence having been filed. 4 The
Part 24 application will be heard on the day of at am/pm at
.Estimated Length of Hearing hours] 5 Any further evidence in
relation to the Part 24 Application shall be served and filed a By
the Defendant, [14 days after the service of the documents in
Paragraph 1 above/ at least 5 working days before the date fixed
for the hearing of the Application] [on day the day of ] b By the
Claimant, in response to that of the Defendant, [at least 3 working
days before the date fixed for the hearing of the Application] [on
day the day of 200 ]
and in either case no later than 4.00pm upon that day. 6 The
Claimant’s solicitor shall file a paginated bundle comprising
a The witness statements provided in support of the application,
together with any exhibits; b The witness statements provided in
opposition to the application together with exhibits; c Any witness
statements in reply, together with exhibits; d Photocopies of
relevant authorities.
This bundle is to be provided no later than [2 working days before
the hearing of the Application] [on day of ].
7 The parties shall file and serve skeleton arguments by no later
than [4.00pm one clear working day before the hearing/ 1pm the last
working day before the hearing]* [on day the day of ] 8 The costs
of and incidental to these directions are reserved to the Part 24
hearing. Permission to apply in respect of such costs in the
absence of such hearing. 9 The parties have permission to apply to
the court on 48 hours written notice to the other to seek to set
aside or vary these directions.
* Depending whether the hearing is estimated to last in excess of ½
day or not
Yours sincerely,
fred robinson
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