The Technology and Construction Court (“TCC”) has been set up in order to deal with IT disputes that are normally extremely technical and therefore require a certain level of expertise and specialist knowledge. The Court forms part of the High Court Queen’s Bench Division, and has a broad jurisdiction, as it covers other types of disputes, including those relating to engineering, building, repairing covenant issues, environmental issues and claims involving oil rigs. This list is of course non-exhaustive and therefore the application of the TCC is broader than it may initially seem. The TCC is managed by expert judges in London and there are a number of other centres in different regions, where claims can be heard.
Civil Procedure Rules
In general, technology claims that are heard in the TCC follow the same Civil Procedure Rules (“CPR”) as other claims, there are a number of areas that differ.
Part 60 of the CPR highlights this, and deals with the particular procedures of the TCC. Part 60 makes it clear that a claim will be heard by the TCC should it require technical expertise, and also explains amongst other things, that any claim in relation to software, hardware and related networks will come under the jurisdiction of the TCC. Part 60 also explains a number of other examples that may fall under the TCC.
Pre-action Protocol
Pre-action protocols are also likely to apply to technological disputes. This means, according to J E Baring Solicitors, that, as per other civil proceedings, there are certain expectations on the parties, including ensuring that both parties have exchanged the correct information, been correct in their method of both claim and response and have had the chance to consider the available evidence. However, for technology disputes there are certain extra obligations with regard to pre-action protocol, and the parties must consider the pertinent issues and look at all possible resolutions without the need for litigation.
Process
Once a case is submitted it is assigned to a judge who will aim to discuss the matter with the concerned parties as quickly as possible. As part of this process, the judge will usually suggest alternative forms of dispute resolution before the trial. The potential alternatives include mediation (either private or judicial) or the option for the parties to ask for the judge to evaluate the case and provide written findings. These findings are non-binding and will not be used should the case proceed. If no agreement can be reached, there is likely to be a Case Management Conference which will set of a list of dates in relation to the case, and any necessary orders will be made. For example, any orders relating to evidence will be made. With regard to evidence, it is important to note that expert evidence can be particularly important in TCC disputes and therefore the selection process for any experts used is fundamental.
Trial
A pre-trial review will be undertaken prior to trial with the intention of agreeing a timetable, and any avenues of settlement will once again be explored. The parties will have to provide certain information, and a list of issues will be exchanged. If there is still no settlement, the trial will begin. Generally, a judgement will follow the same rules as any other civil case, but may be appealed in line with Part 52 of the CPR, provided permission is sought from the concerned judge or from the Court of Appeal.
Specialism
There is no requirement to instruct specialist solicitors but it is always important that with any dispute of importance and value, the right solicitor is instructed. A commercial litigation solicitor should be experienced, tactically astute and have an understanding of the industry.
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