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New research on the Pre-action Protocol

Just released:  "A Report Evaluating the Perceived Value of the Construction and Engineering Pre-action Protocol"

As you may recall last summer TeCSA sponsored a major piece of research evaluating the perceived value of the Construction and Engineering Pre-Action Protocol.

This study was preceded by the joint TeCSA and TECBAR Survey Monkey on the Jackson reforms, cost budgeting and PAP. One of the questions in that TeCSA and TECBAR survey on the PAP revealed it was seen to meet its broad principles.

With news the PAP might be abandoned or heavily modified by the Rules Committee to make it voluntary and knowing amongst solicitors it was seen as a widely popular protocol for the most important entity, the client, TeCSA decided to undertake a detailed study obtaining views from not just solicitor specialists but from across the industry.

The final report, AVAILABLE HERE, is focused entirely on the PAP and has been sponsored by TeCSA and involved our commissioning Acuigen, a provider of market intelligence services to conduct the research.  The project ran from the Summer 2015 to December 2015. For those that contributed a big thank you.

The research has included the examination of data records from 216 disputes, supplemented by 39 in-depth telephone interviews with law firms providing construction services and leading construction companies who collectively had experience of 677 disputes to which the PAP was applicable.

Overall, 95% of respondents thought that the PAP was a valuable pre-action mechanism and 87% believe that it is creating access to justice.  49% of respondents suggested amendments to make the PAP more effective.

These results underline the fact that the PAP is overwhelmingly valued by those who are directly involved with disputes in the engineering and construction sector.

Based on this evidence, TeCSA would say there should be no doubt that the PAP ought to remain and that it should continue to be a compulsory step for those wishing to pursue a claim through the courts.

You may be interested to read that in examining how the PAP could be amended, approximately 75% of respondents felt that access to TCC judges pre-action or to apply for their guidance would be beneficial. 

The feedback on ways to improve the PAP clearly showed that learned judges of the TCC can contribute to the effectiveness of PAP by making themselves available to both parties to give guidance.

One area of active discussion relating to the PAP relates to the question of costs.  As you know presently a defendant is unlikely to recover costs involved in rebutting a claim from a litigant that does not go to trial.  Resolving such issues around pre-action costs was a favoured suggestion by 56% of respondents.  It seems to us that the issues surrounding costs are a key area for discussion within the Civil Procedure Rule Committee looking at reform and TeCSA has urged them to focus on this area whilst recognising the value of the PAP as a mandatory pre-trial mechanism.

As regards the contributors to this study they came not just from Solicitors, but also main contractors, specialist subcontractors, consultants and insurers:

DLA Piper, Fenwick Elliott, Glovers, Herbert Smith Freehills, Hill Dickinson, K&L Gates, Nabarro, Pinsent Masons, RPC, Squire Patton Boggs, Stephenson Harwood, Thomson Snell & Passmore, Weightmans, White & Case, Wragge Lawrence Graham, Addleshaw Goddard , Berwin Leighton Paisner, Brecher, Burges Salmon, Freelance, CMS, Davies and Partners, Dentons, Eversheds, Holman Fenwick, King & Wood Mallesons, Macfarlanes, Mayer Brown, Nabarro, Payne Hicks Beach, Rosling King, Simmons & Simmons, TLT Solicitors, Taylor Wessing, AECOM, ARUP Group Limited, Atkins Limited, Aviva, Bachy Soletanche, Kier, Laing O'Rourke, Mace Group, NG Bailey, Permasteelisa, Prater, Skanska UK Plc.  (There were eight additional contributors who wished to remain anonymous.)

CLICK HERE to download a copy. 

Please do read and circulate! 

TeCSA v TECBAR - the Hudson Ashes

The Hudson Ashes, which are stored in a charming urn commissioned by Atkin Chambers, were fiercely fought over by TeCSA and TECBAR at their annual cricket match on 16 July 2015 at University College School’s ground in Hampstead.

The match was enthralling, and only resolved with the penultimate ball when TECBAR’s captain and number 11, William Webb (Keating Chambers), struck a boundary with a cover drive off Jonathan Stone (Mayer Brown) that TeCSA’s fielders could only admire as the ball rocketed to the fence, thereby ensuring TECBAR’s victory for only the first time this century.

TeCSA, batting first, had compiled a very competitive total of 123 off 20 overs, with wickets in hand.  Rob Wilkins (Pinsent Masons) got the innings off to a positive start, scoring 27 not out, and there were then great contributions from Omar Amin (Wedlake Bell), Marc Wilkins (Fenwick Elliott), Matthew Pexton (Wedlake Bell), and Robbie McCrea (Fenwick Elliott).  The TECBAR team were beginning to look rather ragged in the field, apart from the immaculate wicket keeping of Mr Justice Akenhead.  However, always mindful of a strong closing, TECBAR tightened up in the last few overs of the TeCSA innings, just as Stacy Sinclair and Monique Hansen (both of Fenwick Elliott) were threatening to cut loose.  Despite this, TeCSA went into the tea break the chipper of the two teams, with TECBAR having everything to do.

TECBAR got off to a slow but steady start.  However, their innings just kept continuing to build, despite (or perhaps because of) the innovative (“funky”) field settings by TeCSA’s captain, Jonathan Gold (Sheridan Gold) (more Johann than Andrew Strauss).  Mr Justice Akenhead hit an unbeaten 26, which, rather impressively, was mostly in quick singles.  There was some fine containment bowling by Michael Draper (Sheridan Gold) and Tom Bain (BLP), amongst others, and TeCSA’s fielding was as sharp as a very sharp tack.  TECBAR wickets tumbled regularly, as the game took more turns than the Cresta Run.

The final over came with TECBAR requiring six runs, and TeCSA requiring one wicket, with David Thomas and William Webb (both of Keating Chambers) at the crease.  Jonathan Stone (Mayer Brown), who had bowled magnificently during TECBAR’s innings, had the unenviable task of bowling at the death.  His first four balls conceded one boundary; and then with only two balls left, William Webb struck the winning runs.

It was a fantastic ending to a great match, played with enthusiasm, skill and humour in equal measures.  The game was very well umpired by the teams’ respective chairmen of selectors/team managers, Martin Bowdery (Atkin Chambers) and Dominic Helps (Corbett & Co), who had organised what was, yet again, a great event.

Annual Adjudication Conference 2015

"Unacceptable conduct & the role of experts in adjudication"

WHEN:  26th November 2015

WHERE:  CMS Cameron McKenna LLP

COST:  £50 (or free to fully paid up TeCSA Adjudicator Panel members)

RSVP:  helen.eagle@burges-salmon.com

PLEASE SEE THE ATTACHED FLYER FOR BOOKING INFORMATION, TIMETABLE & SPEAKERS.

Shorter Trials Scheme & Flexible Trials Scheme

A new pilot is set out (7 October 2015 c/f White Book) in CPR Practice Direction 51N and in force since 1 October 2015. It has a bearing on cases proceeding through the Rolls Building as it may encourage cases going straight to Court rather than pre action protocol.

This pilot is a part of a general initiative the MOJ has set to improve costs and efficiency, and ensure that London remains an attractive venue for disputes. One commentator is quoted assaying:

The English civil justice system operates in an increasingly globalised and competitive market, with international businesses seeking not only robust enforceable decisions, but also efficiently delivered ones. These reforms represent a practical and commendable attempt to address certain criticisms that have been levied in recent years against the English civil justice process. As ever, much will turn on the extent to which these reforms are embraced and implemented by the courts. We will be monitoring developments closely.

The goal is to said to be to achieve shorter and earlier trials for business-related litigation, at a reasonable and proportionate cost. Not unlike public sector adjudication but with the full costs sanction proceedings bring.  It aims to offer "dispute resolution on a commercial timescale".

Now the next bit is important, it is said to be suitable for cases which do not require extensive disclosure, or witness or expert evidence.

Trials will be no longer than four days, including reading time, and all claims in the scheme will be allocated a designated judge (docketing as we head pre 2006 in the TCC) at the first case management conference (CMC).

The aim is to reach trial within ten months of the issue of proceedings, not mega fast but quick. After trial, the court will endeavour to hand down judgment within six weeks.

Costs budgeting will not apply unless the parties agree otherwise. Instead, within 21 days of the conclusion of the trial, the parties each file and simultaneously exchange schedules of their costs, with enough detail for the trial judge to make a summary assessment.

The idea is the putative claimant should, except in cases of real emergency or where there is ‘good reason’ not to do so, send the defendant a letter before claim advising them of their intention to use the scheme.

However, note an application can also be made to transfer a case into or out of the scheme, and the court may suggest use of the scheme where it thinks it suitable, so ‘as if’ order can be made. Ideally, such applications should be made before the first CMC, but no doubt can be made after too.

It seems the Flexible Trial scheme therefore allows parties, by agreement, to adapt the trial procedure (including disclosure, witness and expert evidence and submissions at trial) to suit their particular case. Again, it involves limited disclosure and oral evidence and should assist in reducing litigation cost and the time required for trial, as well as ensuring that appropriate cases reach trial earlier.

The key aspiration is flexibility and choice and the scheme is voluntary. Any agreement to be part of the scheme should be made before the first CMC and the court must be advised accordingly.

Given the flexibility already available to judges under their case management powers, it will be interesting to see what impact these schemes will have with other cases in the list and if this voluntary aspect has some arm bending attached via ‘as if’ orders!

The link to PN 51N is as follows:

www.justice.gov.uk/courts/procedure-rules/civil/rules/part51/practice-direction-51n-shorter-and-flexible-trials-pilot-schemes

“Prior to issuing proceedings, you should consider whether the Shorter and Flexible Trials Pilot Schemes (which aim to reduce the time and costs incurred by parties to litigation and provide a mid-point between the “rough justice” of adjudication and full blown TCC litigation) might be suitable for your claim.

The Schemes were introduced by PD 51N and apply to all claims issued in the High Court Rolls Building between 1 October 2015 and 30 September 2017.

The Shorter Trials Scheme (“STS”) offers judgment within a year of the issue of proceedings through a revised, streamlined procedure. It is aimed at straightforward cases, and is not suitable for cases involving allegations of fraud, extensive disclosure, extensive witness/expert evidence, or complex cases with multiple issues or parties.

The key points of the STS are as follows:

* Whether the case is suitable for the STS is at the discretion of the court.

* There is simplified pre-action procedure which replaces any applicable pre-action protocol.

* The length of statements of case, witness statements and expert reports are restricted (for example, there is a maximum of 20 pages for the Particulars of Claim).

* All proceedings will be heard by the designated judge as far as possible to reduce reading in time. 

* Applications will generally be dealt with on paper.

* Disclosure is limited to documents relied upon or specifically requested.

* Trial length is restricted to 4 days (including reading time) and cross examination is restricted.

* Costs budgeting does not apply unless otherwise agreed.

The Flexible Trials Scheme (“FTS”) enables the parties to agree a flexible, simplified and expedited case management procedure, with the aim of reducing costs and obtaining an earlier trial date.

The key points of the FTS are as follows:

* Claims are issued as normal and parties agree the use of the FTS prior to the first Case Management Conference. 

* Once the use of the FTS is agreed, certain streamlined directions apply (subject to any modifications agreed by the parties) unless the court considers there to be a good reason why they should not. 

* Disclosure is restricted, although it is wider than in the STS. 

* Oral evidence at trial is limited to identified issues or witnesses as directed at the CMC or agreed between the parties. 

* Submissions at trial are generally made in writing, with oral submissions and any cross-examination to be subject to time limits decided at the CMC or agreed between the parties”.

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