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In Association With...
OCTOBER 2013
Exclusive Interview with Simon Tolson, Chairman of TeCSA
In Association With...TeCSA
This month we take a look at the legal issues surrounding the Technology and Construction industries by speaking to the Chairman of the Technology and Construction Solicitors' Association (TeCSA), Simon Tolson.
Firstly, what do you enjoy most about being Chairman of TeCSA?
Getting into areas that influence policy and change things for the better, be it legislation, procedure, European legislation. I like our parties too!
What are the key issues you are currently aiming at?
Litigation • Cost budgeting – and TeCSA’s response to the Civil Procedure Rules Committee’s (CPRC) recent consultation into the future application of mandatory cost budgeting and management within the specialist civil courts. These planned law changes in the High Court are highly controversial and TeCSA as an official consultee has had it say. We are not fans!
TeCSA feels it is well informed to comment, it has sponsored the Centre of Construction Law at King’s College, London, in this research; King’s published its interim report on the Costs Pilot on 3 February 2012 and Final Report in April 2013.
• eDisclosure - Also this year TeCSA has promulgated an e-Disclosure Protocol and we invited and enjoined TECBAR and The Society of Computers and Law to work up a Protocol and Guidelines upon it (following our first draft) we duly fashioned and shaped the protocol, met twice with the TCC Judges (and gained their valuable feedback) to now finalise it in a form the Judges say they will include in the next edition of The Technology And Construction Court Guide due later this year.
Adjudication • As Chairman I nominate and appoint adjudicators on disputes where the parties seek a TeCSA appointment, we do about 85 appointments a year and deal with calls from the public and lawyers, all voluntarily.
• Adjudication – TeCSA carry out training and run a major annual conference.
•We have authored and published ‘The TeCSA Adjudication Service’ (http://www.tecsa.org.uk/ adjudication).
•We have a continuing professional development scheme and vetting regime for the adjudicator panel (multi-disciplinary) ensuring our adjudicators are amongst the very best trained and suited by experience, knowledge and background.
International • TeCSA, The Technology & Construction Court, SCL, and TECBAR hosted the International Construction Law Conference in September last year.
We had sessions on Procurement and International Advocacy and discussions on International Arbitration Tribunals and the Analysis of Delay in different jurisdictions, East meets West style.
Keynote speeches came from the highest of the Judiciary including Lord Chief Justice Judge, Lord Dyson MR, Lord Justice Jackson and Sir Anthony May and were attended by all the London TCC High Court Judges. We had many delegates from diverse associated organisations throughout the world including a delegation from the American College of Construction Lawyers and the Canadian College of Construction Lawyers. It brought together construction lawyers and practitioners from across the world to discuss contemporary issues in construction law and dispute resolution to commemorate the first year anniversary of the opening of the new Rolls Building in London, where the conference was held.
TeCSA also propounds important matters for our solicitor Members and hold symposia and lectures. Topics have included:
• eDisclosure law and practice as explained above. By way of background TeCSA set up a Working Group with the objective to provide TeCSA members with guidance, know-how and training on E-Disclosure to raise members’ understanding of what is required in practice to meet their E-Disclosure obligations under the CPR and how best to manage the practical and technical complexities of the process consistent with best practice and the new cost management and other rules implementing the Jackson reforms.
A key goal in this mission is to radically reduce the disparity in terms of knowledge and experience that currently exists amongst practitioners which
continues to affect the efficiency and cost- effectiveness of the litigation process and which is a continuing cause for concern for the TCC judges.
• Construction and Engineering Pre-Action Protocol (PAP): TeCSA has been keen to ensure PAP keeps up to date with the needs and the dynamics of pre-litigious process and there is little doubt amongst solicitors that in a significant majority of cases, the process has led to settlement without the need to issue proceedings. TeCSA has made the case for maintaining the pre-action protocol, which has been a success!1 the Rules.
It is very much still in
• Major symposia, such as is: The Modern Law of Privilege - is it fit for purpose? We held this in June. The discussion centred on the current state of the law of privilege asking whether or not it was fit for purpose. The event was extremely well-supported and generated much debate, particularly in relation to the extent to which privilege offers protection in the context of international arbitrations and construction adjudications. Each of the talks gave much food for thought including whether or not Parliament will take up the Supreme Court’s invitation in R (Prudential plc and another) v Special Commissioner of Income Tax and another [2013] UKSC 1 to revisit the laws of legal advice privilege and the extent of its reach to those outside the legal profession.
• ‘The interventionist judge and better case
management’ This joint TeCSA/TECBAR symposia was run last year, it was chosen as the theme because it formed a central plank of the forthcoming package of interlocking civil justice reforms
from Lord Justice Jackson’s six
propositions. The goal of which is to enable both practitioners and the courts to deliver the best possible service to civil litigants at the lowest possible cost. Topics included dealing with Lord Neuberger’s speech calling for a debate about the extent of the need for live evidence; tips and tactics for hearing complex evidence-heavy cases in shortened trial windows; “Is it ever the Judge’s fault?”; the new test of Lord Neuberger and the rule to be contained in CPR 44.4(5) was announced as the latest cost proportionality test that will come into force from April 2013.