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Technology and Construction Court Guidance

Users' Guide to Adjudication - Construction Umbrella Bodies Adjudication Task Group April 2003 (427 kB)

Second Edition of the Technology and Construction Court Guide (1st revision) (221kB)

Second Edition of the Technology and Construction Court Guide (1st revision) (254 kB)

TCC Judges Sitting as an Arbitrator

This is a short guide to the appointment as an arbitrator of a Judge of the Technology and Construction Court (TCC). In the High Court of Justice only judges of the TCC and of the Commercial Court may be appointed as arbitrators. Judges of the TCC (or official referees as they were known until 1998) have long been arbitrators. The primary business of the court stems from commercial contracts where arbitration is frequently chosen as the preferred method of dispute resolution.

Recently there has been renewed interest in having a judge of the TCC as an arbitrator, not least because the techniques of case management that have been developed by judges of the TCC. Some important projects have contracts which require disputes to be referred to a judge of the TCC. As a result a wide variety of disputes have been now submitted. They include complex computer problems as well as difficult issues in construction cases. Reflecting the work of the TCC and the standing of London as a centre for the resolution of international commercial disputes, many have international elements, e.g. parties who are based outside the United Kingdom.

For further information, please contact the Court Manager:

Wilf Lusty
Technology and Construction Court,
High Court of Justice,
St Dunstan’s House,
133-137 Fetter Lane,
London EC4A 1HD

Tel: 020 7947 7429
Fax: 020 7947 7428

Email: Wilf Lusty

Nothing in this guide is intended to replace or modify the provisions or any statute (such as the Arbitration Act 1996), rule (such as the Civil Procedure Rules) or order (such as the Fees order). It states the position in June 2004.

1. How is a TCC judge appointed to sit as an Arbitrator?

1.1 Section 93 of the Arbitration Act 1996 enables a judge of the TCC to sit as an arbitrator. This is a short guide to the appointment of a judge-arbitrator. Nothing in it is intended to replace or modify the provisions or any statute (such as the Arbitration Act 1996), rule (such as the Civil Procedure Rules) or order (such as the Fees order). It states the position in June 2004.

1.2 There has either to be an agreement by the parties to have a judge sitting as an Arbitrator or one party will have the right to nominate the judge under the arbitration agreement. The agreement or right to nominate will be made either in the original contract or after the dispute has arisen. For example, the parties may decide to alter their original arrangements in favour of a TCC judge or a judge may be agreed as a result of a nomination. The judge can only sit as a sole arbitrator and the arbitration must be based in England or Wales. A judge cannot sit as one of three or more arbitrators.

1.3 Under the Act the request to accept an appointment as arbitrator must be made directly to the judge selected, not to the judge in charge of the TCC. Either the parties will make a joint request or one party will ask if the judge willing to be nominated. The request must provide information about the nature of the dispute (which should be clearly defined), what would be involved (whether early or immediate availability is required, preliminary issues, number and length of possible hearings, overall duration, etc). The letter should provide a copy of the arbitration agreement (but not necessarily the entire contract which included the arbitration agreement) and of any applicable rules of arbitration.

1.4 The judge who has been approached then decides whether to accept the appointment or nomination, including whether he or she has the time available to do so (having consulted the Court Manager). If the judge decides to accept the appointment or the nomination (and once the nomination has been confirmed), he or she then writes to the judge in charge of the list, with a copy of the letter of request, and asks him to obtain the consent of the Lord Chief Justice. If consent is obtained the judge then writes to the parties (or party) to say whether or not the appointment is accepted and to outline the procedure. The judge will deal with any consequences of a nomination.

1.5 It is not necessary for the appointment to be recorded more formally. There is no contract between the judge and the parties. Subject to the agreement of the parties, the judge has all the powers given to an arbitrator by the Arbitration Act (although there are important special modifications set out in Schedule 2 of the Act). However, any alterations to the judge’s powers that have been agreed between them should be recorded formally by the parties, as should any alterations which are made after the appointment and which the judge accepts. Normally the judge will decide how and by whom alterations are to be recorded.

2. Procedure after appointment

2.1 Once the judge-arbitrator is appointed he will arrange for a preliminary meeting with the parties. This is similar to a first CMC but it may well take place before any pleadings have been served.

2.2 On appointment a fee is payable. Normally fees will be paid jointly by the parties unless the judge-arbitrator directs otherwise. The Act contains provisions for fees and costs.

2.3 The fees are specified in the "Guide to the Supreme Court Fees", on page 3, currently £1,400 per hearing day, or part of a day. A hearing will include appointments for directions etc. A day may be treated as 5 hours. The fee includes the courtroom, usher, MRU etc. The Fees Order does not authorise charges for reading time or for time spent on writing decisions or awards.

2.4 Arbitrations are held in private and the privacy and confidentiality of the parties and of the proceedings will be observed at all times. The cause list will not give the names of the parties, merely: In Private – An Arbitration. The "private" sign will be placed on the court door, and steps will be taken to ensure that no members of the public enter. The strict confidentiality of any decision or award will be respected.

2.5 Arbitrations are not court proceedings and can be quite informal. The judge-arbitrator may require the court room to be arranged as for a meeting. Sometimes the judge-arbitrator may wish to sit "one step down" and not on the bench itself. As a judge has been appointed as arbitrator he or she should be addressed as "My Lord" or "My Lady" and not as "sir" or "madam" as is customary in an ordinary arbitration.

3. Decisions and Awards

3.1 Decisions are broadly of two kinds: interlocutory or procedural and substantive. The judge-arbitrator may be content to leave it to the parties to agree and to draw up the former; if not, they will be drawn up by the judge’s clerk and approved by the judge-arbitrator. "Directions" or "Orders for Directions" should be numbered sequentially. Decisions and award may include decisions on the amount of costs and fees and who is to pay them.

3.2 Invoices will be sent for all fees due. On appointment and following each hearing, they should be paid jointly by the parties provisionally pending and decision about allocation. For hearings which result in an award, the normal procedure is that the judge-arbitrator will refuse to deliver the award until the fees have been paid (see section 56 of the Act). A letter will be sent to the parties informing them of the amount of the fees due. The cheque is to be made payable to HMCS. When all the fees have been paid the award will be released.