UK: Who's Suing Whom In The TCC In 2011?

Last Updated: 26 September 2011
Article by Matt Walker

Although the High Court may not yet be the domain of hashtags and the twitterati, the last two months have seen the publication of important reports which allow us to see what is "trending" in the world of litigation. The Annual Report of the Technology and Construction Court1 for 2009-10 was published on 18 August 2011, and followed the publication by the Ministry of Justice of its Judicial and Court Statistics2 for 2009-10, on 08 July 2011.

Big picture

Barlow Lyde & Gilbert has already analysed the latter report in a Litigation Trends briefing3 by Neil Jamieson. In anticipation of the publication by the TCC of its court-specific Annual Report which looks at activity in the TCC between October 2009 and September 2010, we therefore decided to research new claims started in the TCC in 2011 to see what this year's activity tells us about the state of the construction industry and the extent to which it is involved in litigation.

In the Royal Courts of Justice in London there was a fall in litigation of a quarter, and the biggest impact on the figure was the number of originating proceedings in the Bankruptcy and Companies Courts, although the trend was followed across the Queen's Bench and Chancery Divisions. The TCC has bucked that trend, however, with 502 new cases in the London TCC in 2009-10, compared to 516 actions in 2008-09 – and with both those numbers being substantially higher than in the previous four years, where the average number of new cases was fewer than 385.

Sue or be sued?

In our research, we wanted to look a little deeper into the overall numbers of claims in order to find out the incidence of the various types of construction industry persons involved in active London TCC claims – in other words, who are the claimants and who are the defendants? Again, those figures are revealing, with the overall picture being dominated by contractors and subcontractors, both as defendants and claimants, as the table shown on the following page illustrates:

There was a considerable amount of similarity between the above figures, and their counterparts for 2009:

In order to bring those figures up to date, we then had a look at cases started in the London TCC this year. Our figures took us up to the middle of July 2011, so we have also included in brackets the projected number of claims for this year, based on the activity in 2011 so far:

Professionals in the firing line

As previously mentioned, claims brought by and against contractors continue to dominate the business of the TCC. A contractor (which, for the purposes of our research, includes sub-contractors) is up to four times more likely to be involved in litigation than any other type of person involved in the construction industry. However, the number of cases brought by or against contractors appears to be relatively static – indeed, if anything, there appears to be a very slight downward trend in claims brought against contractors in 2011, with a fall of up to 9 per cent on this year's projected figures.

By contrast, the statistic that leaps out from this year's figures is that claims against professionals appear to be markedly on the increase. For instance, although there were only 18 cases against architects in 2009, that jumped by more than 50 per cent last year, and that figure looks set to be maintained in 2011. Claims against Consulting Engineers also look to have increased considerably, with only 32 claims last year, but a projected growth of more than 40 per cent to 45 claims this year.

In pure percentage terms, the figures for Quantity Surveyors are the most alarming, with a 500 per cent hike since 2009 and a 50 per cent increase since last year. Of course, it is worth noting that the actual numbers of claims are low, with a projected total of only six claims against Quantity Surveyors this year; however, prospective claimants appear to be undeterred by the fact that cases against Quantity Surveyors are traditionally thought to be difficult to bring, a view which the TCC confirmed in the decision of Dhamija v Sunningdale Joineries & ors (2010)4, a case in which Barlow Lyde & Gilbert acted, and about which I wrote last year5.

A price to be paid

Whether the increase in claims against construction professionals will have an impact on insurance premiums within the industry remains to be seen. However, developers may wish to think twice before running a claim against a professional as a fall-back position, where (for instance) the sub-contractor that ought to have been pursued has become insolvent, because in the long term, such a strategy is likely only to drive up the costs of consultants' fees and thus the cost of construction projects.

It is worth bearing in mind that the construction sector only grew 0.5 per cent in Q2 2011, when order books would have been fuller after the lack of productivity during the harsh winter in February of this year, as reflected in the Q1 2011 figures which saw the sector shrink by 3.1 per cent. That being so, any trend within litigation that risks driving up costs within the industry, when growth in the UK construction as a whole is at best fragile – and at worst, negative – is not one that should be welcomed. On a more positive note, however, the total number of claims against construction professionals that end up in formal litigation remains low, with only a projected 79 such claims this year. This suggests that the continued willingness of the construction industry to innovate and engage with ADR as a means of resolving its differences is an approach that is serving the industry well.





4 [2010] EWHC 2396 (TCC)

5 See Building, 29 October 2010; and Estates Gazette, 11 December 2010

Additional research by Warren Stapley and Roisin McGrellis, Litigation Assistants

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions