Litigation and things

Champagne Summer Party 2016

When:  Wednesday 8th June 2016

Where:  Roof terrace of King & Wood Mallesons

Time:  6.30 - 9.00pm


We look forward to seeing you there.

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)



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