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ADJUDICATION and the TCC Whenever adjudication is discussed by the Branch members, there is usually much talk about the litigation which has grown out of the Housing Grants Construction and Regeneration Act 1996. The websites of many experts who specialize in the subject of adjudication usually list in excess of 300 cases so there is much scope for debate. Amongst all this debate, a new angle concerning the allocation of cases to judges at the Technology and Construction Court (“TCC”) was commented upon by a member at one recent discussion group. In brief, the point which the member seemed to be making was this: that in the context of minimizing confusion there was now a tendency for the enforcement cases to be decided by a relatively small number of judges: most prominently Jackson J and HHJ Coulson QC. I was intrigued by this observation because it seemed to me that there was potentially a real problem if there was a policy aimed at achieving consistency by restricting the number of judges who decided the cases. I decided to contact the TCC to ask whether or not such a policy existed and I began to speculate in broad terms about some of the implications that may result from such a policy. Much to my surprise, and scuppering my speculation, I received an e-mail back from the court's communication service. In this communication, Mr Justice Jackson provided a comprehensive comment on my question. Jackson J's comments provide an interesting insight into the workings of the court and, in particular, into adjudication cases and I thought that it would be of value to the Branch members if I passed them on. Jackson J stated that approximately 20% of cases brought in the London TCC are related in some way to adjudication and that most of these are claims to enforce adjudicators’ decisions. He said that sometimes other relief is sought (e.g. a claim for a declaration to enable an adjudication to proceed or a claim for an injunction to prevent an adjudication from proceeding). In his specific response to my question about allocation, he stated that the procedure for allocating TCC cases in London is set out in paragraphs 3.7.1 to 3.7.3 of the TCC Guide [see below] and that every new case is referred to the judge in charge for a decision on allocation. He noted that cases which are particularly complex or high value or which raise an important point of law are classified "HCJ" (High Court Judge) and that these cases are then managed and tried by a High Court judge (usually by Ramsey J or by himself, but occasionally by one of the "reserve" High Court judges who sit in the TCC from time to time). He noted that other cases are classified "SCJ" (Senior Circuit Judge) and that these cases are managed and tried by one of the four senior circuit judges in the London TCC. Jackson J made it clear that there is no special or different procedure for allocating adjudication cases in the TCC. He said that if the case is particularly complex or high value or if it raises an important point of law, it is, as noted above, classified "HCJ" and that such a case is somewhat more likely to be heard by himself than by Ramsey J for logistical reasons: first, he [Jackson J] is full time in the TCC, whereas hitherto Ramsey J has spent part of each term away from the TCC, dealing with criminal and other matters; secondly, Ramsey J is case managing a number of heavy TCC actions, which have first call on his time and this sometimes has the consequence that it is more convenient for himself [Jackson J] to hear a short adjudication case. He emphasized that there is no "policy" in existence that he rather than Ramsey J should hear adjudication cases. Further, he noted that the adjudication cases in the London TCC which are classified "SCJ" are generally allocated by rota between the four senior circuit judges. Again, he emphasized that there is no "policy" in existence that such cases should be allocated to Judge Coulson. The other point which he made was that in analysing the allocation of cases, the judgments in SCJ cases will only be visible, if the judge in question decides to put his judgment on the Bailii website [see below]. In addition, Jackson J picked up on my point about consistency of judicial decisions in relation to adjudication. He stated that it must be a matter for commentators to decide whether TCC judges achieve the requisite degree of consistency and he respectfully suggested that, whilst allowing for the circumstances of individual cases, that in recent years there has been consistency; and he referred to these examples: the cases on the meaning of "dispute"; the role of "natural justice"; the meaning of "written agreement" in the context of section 107; when there may be set off against a sum awarded by an adjudicator; when a stay of enforcement may be granted, and so forth. In addition to referring to London, Jackson J said that the position at the 11 TCC courts outside London is broadly similar, but these cases are less visible, because the judgments less often appear on the Bailii website. He also added that the allocation of TCC cases outside London is done by the principal TCC judge at each location or by the court manager. Further, he noted that very occasionally a TCC case outside London is referred to the judge in charge of the TCC for a decision as to whether that case should be managed and tried by a High Court judge (see paragraph 3.7.5 of the TCC Guide). In this context, Jackson J noted that it was this procedure which had led to him sitting in the Leeds TCC for five weeks recently. Jackson J also expressed the hope that more 'out of London' TCC decisions will appear on the Bailii website. I am really much obliged to Mr Justice Jackson for his helpful observations and I expect that readers will also find them interesting. Francis Miller The Bailii website referred to is at
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