The Technology and Construction Court Guide - GOV.UK

1 The Technology and Construction Court Guide Second Edition Issued 3rd October 2005, fifth revision Crown copyright 2015 This publication is licensed under the terms of the Open Government Licence except where otherwise stated. To view this licence, visit or write to the Information Policy Team, The National Archives, Kew, London TW9 4DU, or email: Where we have identified any third party copyright material you will need to obtain permission from the copyright holders concerned. Any enquiries regarding this publication should be sent to us at This publication is available for download at Contents 2nd Edition, updated 9 February 2015 i Contents Section 1.

2 Introduction 1 Purpose of Guide 1 The CPR 1 The TCC 2 The TCC Users Committees 5 Specialist Associations 5 Section 2. Pre-Action Protocol and conduct 7 Introduction 7 To Which Claims Does The Protocol Apply? 7 What Are The Exceptions? 7 What Are The Essential Ingredients Of The Protocol? 8 What Happens To The Material Generated By The Protocol? 9 What If One Party Has Not Complied With The Protocol? 9 Costs of compliance with the Protocol. 9 Section 3. Commencement and transfer 11 Claim Forms 11 Part 7 Claims 11 Part 8 Claims 11 Service 11 Acknowledgment of Service 12 Transfer 12 Assignment 13 Electronic Working in London 13 Section 4.

3 Access to the Court 14 General Approach 14 Hearings in Court 14 Telephone Hearings 15 Paper Applications 16 E-mail Communications 17 Video Conferencing 17 Contacting the Court out of hours 18 Lodging documents 18 Section 5. Costs and Case management and the first CMC 19 General 19 Contents ii 2nd Edition, updated 30 April 2014 The Fixing of the First CMC 20 The Case Management Information Sheet and Other Documents 20 Checklist of Matters likely to be considered at the first CMC 21 Further statements of case 23 Scott Schedules 23 Agreement Between the Parties 24 Drawing Up of Orders 24 Further CMC 25 The Permanent Case Management Bundle 25 Section 6.

4 Applications after the first CMC 26 Relevant parts of the CPR 26 Application Notice 26 Evidence in Support 27 Evidence in opposition and Evidence in reply 27 Application Bundle 27 Hearings 28 Paper Applications 29 Consent Orders 29 Costs 29 Applications without notice 30 Section 7. ADR 31 General 31 Timing 31 Procedure 32 Non-Cooperation 32 early neutral evaluation 33 Court Settlement Process 33 Section 8. Preliminary issues 35 General 35 Guidelines 35 Common Types of Preliminary Issue 36 Other Possible Preliminary Issues 36 Use of PI as an adjunct to ADR 37 Precise Wording of PI 37 Appeals 37 Section 9. Adjudication business 38 Introduction 38 Contents 2nd Edition, updated 9 February 2015 iii Procedure in Enforcement Proceedings 38 The Enforcement Hearing 40 Other Proceedings Arising Out Of Adjudication 40 Section 10.

5 Arbitration 41 Arbitration Claims in the TCC 41 Leave to appeal 41 Appeals where leave to appeal is not required 42 The hearing of the appeal 42 Section 68 applications Serious Irregularity 43 Successive awards and successive applications 43 Other applications and Enforcement 43 Section 11. Disclosure 45 General 45 Limiting disclosure and the cost of disclosure 45 Section 12. Witness statements and factual evidence for use at trial 47 Witness statements 47 Other matters concerned with witness statements 47 Cross-referencing 48 Video link 48 Section 13. Expert evidence 49 Nature of expert evidence 49 Control of expert evidence 49 Prior to and at the first CMC 50 Single joint experts 51 Meetings of experts 52 Experts Joint Statements 53 Experts Reports 53 Presentation of Expert Evidence 54 Section 14.

6 The Pre-Trial Review 55 Timing and Attendance 55 Documents 55 Outstanding Directions 55 Issues 56 Timetabling and Trial Logistics 56 Section 15. The trial 58 Arrangements prior to the trial witnesses 58 Contents iv 2nd Edition, updated 30 April 2014 Opening notes, trial bundle and oral openings 58 Simultaneous transcription 60 Time limits 60 Oral evidence 61 Submissions during the trial 62 Closing submissions 62 Views 62 Judgments 63 Disposal of judge s bundle after conclusion of the case 63 Section 16. Costs and Costs Management 64 General 64 Summary Assessment of Costs 64 Costs Management 65 Costs Capping Orders 66 Costs: Miscellaneous 66 Section 17.

7 Enforcement 67 General 67 High Court 67 County Court 67 Enforcement on paper 67 Charging Orders and Orders For Sale 68 Section 18. The TCC judge as arbitrator 69 General 69 Arbitration Management and Fees 69 Modifications to the Arbitration Act 1996 for judge-arbitrators 69 Appendices 71 Appendix A Case management information sheet 72 Appendix B Case management directions form 73 Appendix C Pre-trial review questionnaire 75 Appendix D Contact details for Technology and Construction Court 76 Appendix E Draft ADR Order 80 Appendix F Draft directions order in adjudication enforcement proceedings 81 Appendix G Draft Court Settlement Order 82 Appendix H - TCC Guidance Note on Procedures for Public Procurement Cases 84 Section 1.

8 Introduction 2nd Edition, updated 9 February 2015 1 Section 1. Introduction Purpose of Guide The Technology and Construction Court ( TCC ) Guide is intended to provide straightforward, practical guidance on the conduct of litigation in the TCC. Whilst it is intended to be comprehensive, it naturally concentrates on the most important aspects of such litigation. It therefore cannot cover all the procedural points that may arise. It does, however, describe the main elements of the practice that is likely to be followed in most TCC cases. This Guide does not and cannot add to or amend the CPR or the relevant practice directions. The purpose and function of this Guide is to explain how the substantive law, rules and practice directions are applied in the TCC and cannot affect their proper interpretation and effect: see Secretary of State for Communities and Local Government v Bovale [2009] 1 WLR 2274 at [36].

9 The Guide reflects the flexible framework within which litigation in the TCC is habitually conducted. The guidance set out in the Guide is designed to ensure effective management of proceedings in the TCC. It must always be remembered that, if parties fail to comply with these requirements, the Court may impose sanctions including orders for costs and, following the implementation of the Jackson reforms, will be more ready to do so. 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 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.

10 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 at proportionate cost. 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.