OCTOBER 2013

In Association With...

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• Symposia: ‘E-disclosure and e-working in the TCC’ his joint TeCSA/TECBAR symposia was selected with the changes to CPR 31 in play. We had an excellent line-up of speakers which included Mr Justice Akenhead, who delivered an update from the TCC, and Mr Justice Edwards-Stuart, who reported on e-working in the TCC.

• Major lectures such as 'Reforming the costs of civil litigation: How the Jackson costs reforms will affect the TCC' a very popular joint TeCSA/TECBAR lecture given by Mr Justice Ramsey on 20 March 2013 at the Royal College of Surgeons.

• TeCSA also actively participates on the Technology & Construction Court Users Committee on such matters as the design of the Rolls Building and facilities for users and public, the move to the Rolls Building by the TCC; e-working, e-disclosure, pre-action protocol, urgent applications, procurement business cases, injunction and enforcement cases and filing issues, use of IT in the Court and procedure generally.

What do you feel are some of achievements of the Group?

the main

• Our recognition as important consultees by the government, policy and law makers.

• Our leading role in Adjudication law and training. • Our lecture programme

• Our creation of Protocols adopted in civil TCC procedure be it (i) pre action protocol, (ii) (iii) ADR Protocol, (iv) IT Protocol, (v) e-Disclosure Protocol aimed to help achieve best practice in key areas of civil procedure.

• A very good website.

• Highly motivated Committee comprising all still working lawyers on the tools and leaders in their firms.

What are the benefits for a client in choosing a firm from such a network?

You are getting before specialist informed solicitors who practise in the TCC and deal with technical cases, for example cases involving all aspects of the built environment, including technical defects claims and claims for money and extensions of time. TeCSA helps shape Court practice and legislation relating to dispute resolution and ADR. It also promotes best practice in all forms of disputes resolution. So the benefits for the client are we hope well informed specialist lawyers!

What are the main challenges your members face within the technology and construction sectors?

It is a challenge keeping up to date with the law and changes in procedure whilst remaining efficient and competitive in the market place.

can legislation ever keep up with the rapid pace at which technology moves?

There will always be a time lag! Lawyers will always enjoy that reality.

Watch this space so far as Building Information Modelling and the next five years. BIM systems use a computer generated model to collect and manage information about the design, construction and operation of a project centrally. But I foresee legal problems associated with BIM implementation will arise and liability issues where design fails the owner. That said the UK is now recognised by its peers as one of the leading nations in the exploitation of BIM technology and processes in construction.

But of course our laws are based on people, places and things. But technology and the advance of engineering, materials, components, plant, tools and BIM and the Internet are not!

Software, the cloud and the internet is not a place. It is everywhere and nowhere in particular. Digital information is not a thing. It flows in tiny packets and exists in multiple copies just to be seen and used. And people are becoming great files of data as companies track them everywhere, and blacklisting in the construction industry is such a hot potato.

Whilst I am not a media lawyer, one only needs to look at other areas of the media to see there's an enormous cultural gulf between the general public and the judiciary (TCC judges less so I must say), whose job it is to interpret and apply those laws. Ignorant of the nuances of the internet and mistrustful of the milieu from which social media types emerge, some say our judges are simply not qualified to determine the appropriateness or effect of a jovial tweet!

Increasingly, debate in the public square is being carried out online, on permanent and public social platforms. Often it is poor quality but by no means always. These platforms are fast-paced, aggressive worlds that encourage rapid-fire debate and quick thinking. They are adversarial by nature, and they can show off much of the beauty and colour of the English language. In other words, these platforms are changing the flavour of public discourse – and the judiciary must not lose sight of this fact. As ever, the medium is the message!

1http://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_ced www.lawyer-monthly.com

are there any legislative changes that you would like to see implemented?

From the EU I would like to see the UK firmly opt out of the plan for a proposed Harmonisation of EU Contract Law aka the common European sales law (CESL)! Sadly our European cousins embrace it, but that does not make it right for the construction industry or business in the UK.

At the moment 27 systems of contract law are available for use in the single market and we are yet to see the evidence to persuade us that they are causing real difficulty for traders and consumers. TeCSA has replied officially to consultation twice upon this subject.

We believe TeCSA is peculiarly well-placed to comment upon the desirability or otherwise of this initiative from the perspective of the construction and engineering sectors. Its members are actively involved both at the front end, in advising on the use of standard forms and/or their amendment and drafting and negotiating bespoke forms of contracts and contracting systems for more complex projects also in the application of all forms of dispute resolution to solve the many disputes and problems that the execution of projects across the piece that they tend to generate.

TeCSA stated its strong impression is that those operating within these industries would not welcome or be interested in change for which there is no clearly demonstrable case on the basis of necessity or actual benefit. LM

contact details:

Simon tolson Fenwick Elliott LLP aldwych House 71-91 aldwych London Wc2B 4Hn

tel: +44 (0) 20 7421 1986 Fax: +44 (0) 20 7421 1987 Email: stolson@fenwickelliott.com