UK: Litigation Procedure: A Round-Up For Construction In-House Lawyers

Last Updated: 30 November 2017
Article by Akin Akinbode, Gurbinder Grewal and Rachael Herbert

Our pick of recent news and decisions on litigation and alternative dispute resolution procedures for construction claims.

If you would like more information on any of the topics below,

Proposals for new disclosure rules in the offing

The changes made to the Civil Procedure Rules (CPR) back in 2013 introduced a new menu of disclosure options to make the process more efficient and ensure that costs are kept proportionate to the value of the claim.

However, despite a disclosure menu, the introduction of electronic disclosure procedures and advances in supporting technology that allow a much quicker sifting of documents, most parties still opt for the traditional "everything but the kitchen sink" approach. "Standard disclosure" remains the default choice for most a process that obliges parties to make a reasonable search for and disclose all documents that adversely support or affect both its own and the other's case.

In reality, the current disclosure regime is based on and more applicable to paper and not e-documents. It is simply not fit for the deluge of electronic data that most litigating parties face – particularly in the type of complex, document-heavy, claims dealt with by the Technology and Construction Court.

In 2016, Sir Terence Etherton, a former Chancellor of the High Court, set up a working party to address the widespread concerns about the perceived excessive costs, scale and complexity of disclosure. Recognising that disclosure is a key procedural stage for most evidence-based claims, Sir Terence said:

"It is imperative that our disclosure system is, and is seen to be, highly efficient and flexible, reflecting developments in technology. Having effective and proportionate rules for disclosure is a key attraction of English law and English dispute resolution in international markets."

The working party, chaired by Lady Justice Gloster, has now published a draft Practice Direction which, once in force, is intended to effect a "wholesale cultural change" including a digital approach to disclosure, a change in lawyers' attitudes to disclosure and a shift in the judiciary to more proactive case management.

The proposed disclosure scheme, set out in the draft Practice Direction and a draft "Disclosure Review Document" (DRD), will be tested in a two-year pilot currently planned to start in early spring 2018. This pilot will be mandatory: there will be no "opt in" approach as we've seen on some other procedural changes.

Advisory note for claims in the Business and Property Courts

The Business and Property Courts (B&PCs), which include the Technology and Construction Court, came into operation on 2 October 2017. An updated version of the B&PCs' Advisory Note was published on 13 October 2017 and included a draft of the B&PCs Practice Direction. The note deals with, for example, the opening of new B&PCs in Newcastle and Liverpool, electronic filing, the types of cases that can be heard in each court, as well as practical details such as what titles to give cases issued after 2 October 2017. Further updates are expected. (Click here to read the Advisory Note.)

A separate guidance note relating to court orders and their production was issued at the beginning of November for application in the B&PCs in Leeds only.

Proposals for fixed costs for lower-value claims in the multi-track

As part of his 2010 Review of Civil Litigation Costs, Lord Justice Jackson introduced fixed recoverable costs (FRC) in "fast track" cases (for claims of up to £25,000) and "costs budgeting" for multi-track cases. Having waited for those reforms to "bed in", he published his latest report on FRC on 31 July 2017, in which he develops proposals to extend FRC to lower-value claims in the multi-track.

The aim in preparing this report was to analyse the ways in which costs recovery could be made more proportionate and thereby promote access to justice. The first paragraphs of the report set out the background succinctly:

"In England and Wales, the winning party in litigation is entitled to recover costs from the losing party. The traditional approach has been that the winner adds up its costs at the end and then claims back as much as it can from the loser. That is a recipe for runaway costs. The only way to control costs effectively is to do so in advance: that is before the parties have run up excessive bills. There are two ways of doing that:

(i) a general scheme of fixed recoverable costs (FRC);

(ii) imposing a budget for each individual case (costs budgeting)."

The views of a diverse set of interested parties were collated and the proposals include:

  • a grid of FRC for all fast track cases (chapter 5);
  • a new "intermediate" track with streamlined procedures for certain claims up to £100,000 (triable in three days or less with no more than two expert witnesses on each side) (chapter 7); and
  • a voluntary pilot (with SMEs in mind) of a "capped costs " regime for commercial cases in B&PCs up to £250,000 with streamlined procedures and capped recoverable costs up to £80,000 (chapter 9). The trial, which should last no more than two days, should be held within eight months of the Case Management Conference.

At the heart of the review is the objective of promoting access to justice. "Controlling litigation costs (while ensuring proper remuneration for lawyers) is a way of promoting access to justice. If the costs are too high, people cannot afford lawyers; if the costs are too low, there will not be any lawyers doing the work."

Successful litigating parties should not lose sight of the fact that fixed recoverable costs in litigation proceedings will almost always be lower than the actual cost of legal fees incurred. Recovering fixed costs from the other party will still, again in almost all cases, leave the successful party liable to pay the balance of fees to its legal team.

The report is being reviewed by the Master of the Rolls, the Lord Chief Justice and the government and further consultation is expected before the implementation. (Click here to read the report in full: Review of Civil Litigation Costs: Supplemental Report – Fixed Recoverable Costs.)

Counsel's unavailability is not a good reason to delay hearings

In a recent group action case, Mr Justice Fraser refused to take account of counsel's availability when fixing hearings in the proceedings. He even took the unusual step of issuing a written judgment with reasons on the basis the issue was likely to arise again.

Acknowledging that counsel of high repute "are extremely valuable in the marketplace and have many potential clients", the judge also recognised that senior counsel "all work extremely hard and it is a function of the independent Bar that they will usually have multiple cases underway simultaneously". While it was regrettable for one party to be deprived of its counsel of choice because of the date of the listing, it was not unusual. Provided reasonable notice is given, a replacement could be found.

Fixing court hearings around the diaries of busy counsel, rather than their fixing their diaries around the case, was a fundamentally wrong approach. When carrying out their case management functions, the courts cannot park a case indefinitely while the parties or their lawyers attend to other matters. Such an approach would lead to unacceptable delay and additional costs: delaying hearings must be avoided. Hearings would be fixed well in advance so that counsel would know when they were taking place and plan accordingly.

While this was not a construction case, the clash of court/counsel diaries is an issue that can affect complex, high-value cases such as those found in the Technology and Construction Court. Parties who instruct busy Queen's Counsel (QCs), and even senior juniors, should be aware that their unavailability for hearings or the trial is unlikely to be a good reason to delay the listing.

(Bates & Ors v. Post Office Ltd [2017] EWHC 2844 (QB))

Litigating parties' behaviour must be cost-effective, efficient and in accordance with the overriding objective

In Bates, the judge rounded off his judgment with a costs warning. He listed both parties' procedural failures in the case, which included: "failing to respond to proposed directions for two months; failing even to consider e-disclosure questionnaires; failing to lodge required documents with the court; failing to lodge documents in good time; refusing to disclose obviously relevant documents; resisting any extension to the 'cut-off' date for entries of new claimants on the Group Register; and threatening pointless interlocutory skirmishes".

In clear disapproval of the parties' conduct in the proceedings, the judge said:

"Such behaviour simply does not begin to qualify as either cost-effective, efficient, or being in accordance with the overriding objective. A fundamental change of attitude by the legal advisers involved in this group litigation is required. A failure to heed this warning will result in draconian costs orders."

Bates is further evidence of judicial robustness when enforcing the court's overriding objective of dealing with cases justly and at proportionate cost (under Civil Procedure Rule, Part 1). The judge reminded the parties that they have a duty to help the court to further the overriding objective and must co-operate between themselves, be constructive and conduct the case efficiently.

House of Lords review judicial appointments

The House of Lords Constitution Committee has issued a follow-up report on judicial appointments. As well as requesting "resolute and unflinching" support from the Lord Chancellor in defending the judiciary from personal attacks, the Lords considered:

  • why it is difficult to retain and recruit judges, including: the difference between public and private sector pay; poor morale following the dispute about their pensions; the dilapidated state of the court buildings and the support functions; the retirement age; and the issue of judges returning to private practice;
  • recruitment issues and how to ensure a steady stream of applications without lowering the high standard; and
  • following limited improvement in the diversity of the judiciary, how to make high-level judicial posts open to a wider pool of applicants and the need for pre-application training.

To read the Select Committee on the Constitution, Judicial Appointments: follow-up, (7th Report of Session 2017-19, published 2 November 2017, HL Paper 32), click here.

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com.

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 Mondaq.com.

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

Authors
Events from this Firm
18 Jan 2018, Seminar, London, UK

2018 will mark the tenth anniversary of the financial crisis. We are still feeling the aftershocks, with MiFID II on the doorstep and CRD V in the offing. But what lies beyond the upcoming round of financial services regulatory initiatives – global, European and domestic?

18 Jan 2018, Speaking Engagement, London, UK

We are delighted to announce that leading figures from the real estate world – Angus Dodd from Quintain; Charlie Green from The Office Group; and Susan Geddes, formerly of Santander – will join us on Thursday 18 January to take part in a Q&A discussion on the issues and opportunities that the next 12 months hold for the real estate sector.

22 Jan 2018, Speaking Engagement, London, UK

This event aims to explain the importance of the HeForShe movement and achieving gender parity in the workplace by exploring the best practices adopted by Barclays as one of the founding corporate champions of HeForShe.

 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

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