The TCC has recently decided two points of procedure which will be of interest to those involved in or considering proceedings in the court. The first is that no dedicated ‘window’ is to be built into the court timetable for alternative dispute resolution (ADR) procedures such as mediation. The second is that the court will have an unfettered discretion to order the filing and exchange of costs budgets in cases where the claim exceeds the monetary threshold for mandatory cost budgets.
A ‘window’ for ADR
When setting a timetable for proceedings, the TCC will aim to fix a trial date which is as soon as reasonably possible so as to ensure that costs do not get out of control. It will, however, also allow reasonable periods of time between each step in the process to give the parties time to reflect and consider ADR before incurring a further tranche of costs.
In a decision issued earlier this week, the TCC has refused to go further and build into the court timetable a dedicated ‘window’ for engaging in ADR. The court noted that:
- Such a window would create undue delay and increased costs for purposes unrelated to preparation for trial.
- ADR is a consensual process and it is inappropriate for the court to decide when ADR should occur.
- It is wrong in principle to fix a time period for ADR especially when one of the parties actively does not want to pursue ADR.
The court noted that none of the above was intended to dissuade parties from engaging in ADR or to dilute the cost sanctions applicable where parties unreasonably refuse to do so. It was simply to emphasise that parties are to engage in ADR concurrently with their continued preparation for trial.
Cost budgeting for cases above the threshold
Cost budgets are presently only required in TCC proceedings for claims within certain monetary limits. For claims commenced before 22 April 2014 the limit is £2 million and for claims after this date the limit is £10 million. In the same decision mentioned above, the court has clarified that it retains an unfettered discretion to order the production of cost budgets in cases above these limits. Parties need not show special circumstances and there is no assumption against the production of cost budgets in such cases. Instead, the court will consider whether to make such an order taking into account all relevant material, without prejudging or making any specific assumptions one way or the other.