UK: Another String to the Bow!

Last Updated: 24 August 2006

By Philip Norman1

It has become increasingly obvious to those in the construction industry that they have a choice in the way their disputes are resolved and managed. They are no longer required to submit to the sovereign jurisdiction of the national courts and adopt the procedural and evidential burdens that proving cases in those courts require2. More frequently, by reason of the increasing popularity of ADR, companies prefer the possibility of retaining control in the resolution of disputes rather than handing their fate over to a third party judge.

This has resulted in a change in the manner project contracts are made. Many, including standard forms, require that parties undertake a process of amicable dispute resolution before issuing proceedings. In Project Alliancing contracts, the parties agree to a "No Blame No Dispute" clause, which precludes adversarial litigation.

Whilst still in its infancy, the modern trend is to avoid conflict and adversarial contracting. This process is supported by the changing dispute resolution processes, which are equally geared away from resolving the disputes in a confrontational manner. Mediation for example focuses on the parties’ needs and not necessarily their rights, in an attempt to find creative solutions.

The table below shows the statistics of the Royal Courts of Justice Technology and Construction Court sitting in London.3


Claims Received

Claims Disposed of

Total (including transferred cases)

Claims Disposed of Settlement/

Struck out/ Discontinued

Claims Disposed of at Trial

Interim Applications











































It is obvious that the traditional work of the TCC is on the wane. This is partly due to the changing nature of contracting in the construction industry, partly due to the Adjudication process in the UK and partly due to the provisions in the CPR which have promoted early settlements, by requiring exchanges of information at the earliest possible stages through pre-action protocols and by formalising costs penalties in connection with offers to settle. Further there has been judicial support for dispute resolution by mediation, to the extent that parties refusing to mediate may suffer costs sanctions4.

No doubt these issues prompted the senior judiciary to consider how to improve the TCC to better provide for the modern construction industry. On 7 June 2005, the Lord Chief Justice issued a statement committing to modernising the TCC and implementing interim arrangements, which included allocating a High Court Judge to the TCC on a full time basis5. Contemporaneously, HHJ Toulmin CMG QC began considering a proposal that TCC judges should offer services in ADR6. Upon his appointment to the High Court Bench in November 2005, Mr. Justice Vivian Ramsey assisted HHJ Toulmin, resulting in a proposal7 being published on 8 December 2005, entitled "Court Settlement Process" (CSP).

What is being proposed is that TCC judges, who have specialist expertise, should be able to use their case management role to assist parties in achieving settlement of their disputes. There are two conditions to this, firstly, that either the judge or the parties must consider that there is a possibility that amicable settlement will be reached, and secondly that the judge is "particularly able to assist in achieving that settlement".

If the CSP does not result in settlement, the judge will recuse himself from further participation in the disposal of the case.

There is no express definition or description of what CSP is. This is probably to allow Judges the flexibility to adopt the best suited process to resolve the dispute. There are however hints as to the range of processes which may be adopted by a judge. For example, the first sentence of the Paper states: "The specialist judges of the Technology and Construction Court have particular expertise in the evaluation of the disputes which are dealt with in that court", suggesting a process similar to Early Neutral Evaluation.

Later in the paper, under the section entitled "Court Settlement Order" it provides that the process is "a confidential, voluntary and non-binding dispute resolution process in which the Settlement Judge assists the Parties in cases before the Court to reach an amicable settlement at a Court Settlement Conference" and provides that the judge may conduct the process "in such manner, as the Judge considers appropriate, taking into account the circumstances of the case, the wishes of the Parties and the overriding objective" of the CPR.

The further description of the powers granted to the judge by the Court Settlement Order suggest a process which is similar to that of a mediator, so that the Judge (absent objection) "may communicate with the Parties together or with any Party separately, including private meetings at which the Settlement Judge may express views on the disputes."

The Settlement Meeting is envisaged to last no longer than a day and the issues of confidentiality, costs, exclusion of liability and the judge’s recusal are provided for in similar terms to those contained in contracts governing the established methods of ADR.

Upon invitation, the Chartered Institute of Arbitrators responded to this Paper on 27 February 2006, with emphatic objections to the proposals. The CIArb considered that the expression "CSP" clearly means mediation and on that basis sets out 5 reasons in support of its objections:

  • Mediation by judges is inconsistent with the overriding objective of the CPR for dealing with cases justly. They argue that allowing judges to act as mediators gives too generous an interpretation of the CPR and that judges should be limited in assisting parties to settle the whole or part of the dispute, by granting the parties time to pursue ADR outside of court. They also state that the caucus process in mediation could be seen to be a breach of natural justice;
  • Mediation by judges is not a judicial function. The argument is that judges are chosen for their skills of considering, weighing and determining issues and not as negotiators/facilitators. These skills are different and there is no reason to believe that a good judge is of necessity a good mediator;
  • Mediation by judges threatens public confidence in the court, as by so acting they compromise the impartiality and neutrality of courts, and the appearance of such. In particular the focus is on undue coercion, role confusion, competence and training and the appearance of impropriety;
  • No measures are to be adopted to alleviate the above concerns. By reference to the Superior Court of New Hampshire, which has such a scheme, the CIArb point out that no mitigating measure, such as training, selection of location for the mediation and safeguards preventing the Settlement Judge from speaking to the ultimate Trial Judge, have been considered or proposed;
  • The proposal is no improvement on Early Neutral Evaluation.

I do not consider that what is being proposed is mediation in its strict sense. Parties are likely to still be encouraged to attend mediation outside of the court process. The impression that is given by the "CSP" is that it is intended to allow a judge the opportunity to "bang the parties’ heads together".

Often, during a preliminary hearing that judges express views or reservations about cases, subject to full argument. They do this in various ways, for example by posing probing questions to counsel or by making the subtle comment, always careful to avoid any breach of natural justice. The CSP allows judges to set out their views confidentially and robustly, if necessary, without the possibility that the litigation will flounder for a breach of natural justice.

The process will be useful where litigation progresses to trial solely because of the characters involved (clients and lawyers alike), whose participation has avoided early settlement. A judge’s views will bring into sharp focus the merits, and more importantly the litigation risk in each party’s case. This is particularly so because of the judge’s status; he brings with him the imprimatur of authority. It will be someone like him, with the same training and attributes who will eventually determine the dispute, should there be no settlement. No matter how competent a mediator is, he does not have that gravitas.

Unless controlled very carefully, it is unlikely that the CSP will concentrate on the parties’ needs. Inevitably any Settlement Meeting will be attended by lawyers, they will be cagey about the weaknesses of their case and will treat the judge as a judge. More importantly, they will press for their client’s rights and are likely only to produce documents which support their client’s case. This is all in aid of obtaining a positive view on the merits from the judge; which may not result in settlement at that meeting, but could be used as a tool to bring a settlement about later on.

However the CSP evolves, it at least creates a further option in the array of dispute resolution mechanisms available. This can only be good for business. The CSP makes the services of the TCC more relevant and will no doubt form a consideration in parties’ minds when they chose their dispute resolution forum.


1 In his article, ‘Mediation and the Rise of Relationship Contracting’ (2003) Law Society of South Australia Bulletin Vo.24 No.7, Greg Rooney comments: "Clients no longer unquestioningly place their trust and welfare totally in the hands of professionals. They are more informed and discerning than previous generations. Clients want their lawyers to provide realistic and creative options for dealing with disputes. They would prefer options that create opportunities as well as minimise the risk of involvement in further disputes."

2 These figures are derived from the Annual Reports prepared by the Queen’s Bench Division from 199 to 2004 and from the TCC Annual Report 2005. The figures exclude data from the Central London County Court and the other TCC trial centres based outside of London. The figures for actions pending at the end of each year are not included in this table, but can be found in the Annual Reports.

3 See Halsey v Milton Keynes NHS Trust [2004] EWCA Civ 576 and approved in Burchell v Bullard [2005] EWCA Civ 358

4 This was no doubt done in recognition of the increasing number of high value cases and projects that exist as well as acknowledging that construction generates in the region of 10% of the GDP.

5 The term ADR (Alternative Dispute Resolution) is used in the sense adopted by the courts in England, and therefore excludes reference to arbitration.

6 This proposal was informed by consultation with TeCSA and TECBAR and thereafter discussions at a meeting held on 5 December 2005 at which TCC Judges, the Lord Chief Justice and the President of the Queen’s Bench Division were present.

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
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must 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