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Lord Woolf鈥檚 important statement on the Technology and Construction Court will have a big impact on construction litigation. Details of these 鈥渋nterim arrangements鈥� have already been discussed (17 June, page 60), but the statement鈥檚 significance goes right to the heart of how construction disputes are to be managed and where they fit into the larger landscape of the civil justice system.

It鈥檚 useful to reflect on the TCC鈥檚 history. Once upon a time, there was a specialist court called the Official Referee鈥檚 Court. It came into existence in the 19th century as a place for construction business to be handled by specialist non-High Court judges sitting within the Queen鈥檚 Bench Division of the High Court. The court steadily built up a solid reputation. But that reputation became tainted by an increasingly

unfavourable perception of litigation in general. Then, in 1999, the Official Referee鈥檚 Court changed its name to the Technology and Construction Court. That was at about the same time as Woolf鈥檚 reforms of the civil justice system, which were designed to ensure faster and more effective justice for all.

The latest changes at the TCC reinforce the thrust of the Woolf reforms. Construction business looks set to move closer to the heart of our justice system. The key change is that some of the tougher cases will be handled by High Court judges rather than the specialist TCC judges. Probably a large proportion of the High Court cases will be handled by Mr Justice Jackson himself, who was a High Court judge sitting part-time in the TCC and is now full-time.

There are five High Court judges to whom certain TCC business will be transferred, namely Mr Justices Christopher Clarke, Elias, Field, Ouseley, and Simon. There may be questions about the construction experience of these judges. However, assuming that there is more work than Mr Justice Jackson can handle himself these judges should be allocated enough construction work to ensure they don鈥檛 become like a kind of SAS team parachuted in on isolated occasions. It would be no good for TCC business to be managed by judges who may be perceived as having no familiarity with what happens on building sites.

Naturally there are some question marks about the changes. For instance, a key question is what criteria will determine whether or not a case is tried by a High Court judge. Woolf said in his statement that the 鈥渕ost complex and heavy cases鈥� will be dealt with by these senior judges. Will the decision to allocate a case to them be made purely by reference to the value of the dispute, to its complexity, or a combination of factors? Another question is where the threshold for High Court judge matters will be set. Here, Woolf indicated that 鈥渢he majority of cases鈥� will remain with TCC judges. It would be quite wrong for TCC judges to be marginalised.

Another interesting development is that Judge Seymour has been 鈥渞edeployed鈥� and is no longer handling TCC business. Readers may recall that he had his wrists slapped by the Court of Appeal when they read his judgment in Co-operative Wholesale Society (CWS) vs International Computers (13 February 2004, page 49). The Court of Appeal described Seymour鈥檚 first instance judgment as 鈥渨ounding and sarcastic鈥� after he had described one party鈥檚 case as 鈥渂ordering on the nonsensical鈥�. Some have even gone so far as to suggest that Seymour鈥檚 presence in the TCC was putting litigants off using the court, but that may be to ignore the huge impact of adjudication on construction disputes.

The die is cast. Some may quibble about the way the changes have been introduced. Were we properly consulted about them? It is open to debate, but it is important that the TCC meets and is seen to be meeting the industry鈥檚 requirements. After all, the customer is always right. And that means industry consultation should be carried out before changes are made to the status quo. Nevertheless, I believe the changes are cautiously to be welcomed as a further evolutionary step in the overall reform of the civil justice system. We must hope that they benefit the construction industry and the handling of its disputes. The sooner these interim arrangements are finalised the better.

Nick Lane is a lawyer specialising in construction law at solicitors Travers Smith, nicholas.lane@traverssmith.com