A specialist industry requires a specialist court with specialist practitioners
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One effect of the depth of the recession in the construction industry was an increased willingness to take disputes to the courts. In the year 2010-2011 the number of cases heard by the specialist Technology and Construction Court (TCC) rose to a high of 512, according to the court’s annual report, following a rise the previous year to 502 cases. Only now is that figure starting to drop off, with 457 new claims brought last year.
Construction law is a complex area of law, requiring such a specialist court and specialist lawyers and judges to administer it. The TCC deals with areas of law including traditional building cases, as well as professional negligence claims, claims regarding development, dilapidation claims and so forth.
Like all areas of law, construction law has felt the effects of the Jackson reforms – the TCC was the court chosen to trial so-called ‘hot-tubbing’ of expert witnesses – and there have been recent amendments to the Construction Act regarding payments and contracts. A further area where the construction industry appears to be leading the way is in the increasing use of adjudication and arbitration. The use of non-litigious methods for settling disputes has been progressively enshrined in various pieces of legislation, culminating in the Construction Act. The Act made arbitration easier by removing the clause in the Housing Grants, Construction & Regeneration Act (HGCRA) for a contract to be in writing in order to qualify.
Writing at the time of the Act becoming law in 2009, John Wright of the Chartered Institute of Arbitrators, said: “Adjudication has proved effective in helping construction parties to resolve their disputes swiftly and cost-effectively, which has allowed projects to be completed without wasted cost and time in litigation. The HGCRA 1996 has been effective in providing a statutory right for parties to refer a dispute to adjudication but changes were necessary to the original legislation to improve the process and increase access to adjudication. Many of the changes in the new Act are to be welcomed, although questions still remain about some aspects.”
In future issues, Construction National will be taking a look at some of the issues the subject throws up, as well as reporting on cases that hit the headlines.