Litigation in the technology and construction court
The TCC and ADR
The Courts seek actively to encourage parties to settle their disputes in numerous ways. The Pre-Action Protocol’s (Appendix 2) origins lie in an attempt to front-load preparation and make settlement prior to commencement of an action more likely. In the standard Court form submitted prior to the first CMC, the parties are required to indicate whether any form of alternative dispute resolution (ADR) has been attempted or whether a stay should be imposed for a period to allow ADR. As will be explored later, the Court will also consider, to some extent, the parties’ wishes when it comes to a timetable to the final hearing which can accommodate commercial negotiations, and the Court has the power to impose sanctions in costs if a party does not engage meaningfully in ADR. These tools are put to good effect: on the basis of the TCC annual reports, while there is no data which specifically identifies the number of cases which end by negotiated settlement, each year the number of fought trials equates to a relatively constant figure of around 10 per cent of the number of claims commenced. It is clear that, whatever the precise number, the very vast majority of claims commenced do not proceed to judgment.