Changes to the latest edition of the Technology and Construction Court Guide – What are the key ADR Takeaways?

The 4th edition of the Technology and Construction Court Guide, effective from 1 July 2026, strengthens expectations on parties to consider settlement and ADR. Reflecting Churchill v Merthyr Tydfil CBC and subsequent CPR changes, it marks a further move towards the active consideration of settlement throughout a dispute. What does this mean in practice for construction litigators?

Removal of “voluntary” Language

One of the notable changes in the 2026 Guide is the removal of earlier references to ADR as being voluntary, reflecting the position established by Churchill and the subsequent CPR changes.

The court now has an express power to order parties to engage in ADR processes, although it cannot compel them to reach a binding outcome. This also brings potential costs consequences: an unreasonable refusal or failure to engage with ADR can carry significant costs risk.

The emphasis is also on considering ADR earlier. Parties are expected to address it during the pre-action stage and before the first CMC, with legal representatives having a role in making sure clients are aware of the potential benefits. The Guide also confirms the continuing relevance of Halsey when considering costs where ADR has not been ordered and encourages the use of ENE where previous attempts at ADR have been unsuccessful.

What Changed in the TCC Guide – Key ADR Points

The 4th edition consolidates and advances ADR expectations across the TCC lifecycle.

• Definition of ADR: At §7.1.1 ADR is “any process through which the parties attempt to resolve their dispute”, typically including negotiations, mediation, early neutral evaluation (ENE), and the Court Settlement Process.
• Court power and explanations: §1.1.4 emphasises the court’s power to order ADR and the expectation that parties explain if ADR has not been attempted.
• Earlier pre-action ADR: §2.4.4 reinforces earlier ADR under the Construction and Engineering Pre-Action Protocol, including a 21-day timetable for the pre-action meeting; §7.2.2 recognises the Protocol as a type of ADR.
• Duties of legal representatives: §7.1.4 reminds practitioners to ensure clients are fully aware of ADR benefits and that ADR is carefully considered before the first CMC.
• Costs sanctions framework: §7.4.1 confirms that Halsey factors remain relevant to costs where the court has not ordered ADR, while the court’s power to order ADR is addressed separately.
• No cap on number of ADR attempts: §7.5.5 confirms ADR is not limited by number and specifically encourages ENE where other ADR has been unsuccessful.
• Appendix B, direction 6: Where a party refuses an ADR proposal, it should provide a witness statement within 21 days explaining its reasons; that statement is not shown to the trial judge until costs are considered.

Churchill and the CPR Framework

Churchill clarifies that the court may stay proceedings or order engagement with non-court dispute resolution where doing so is proportionate and does not impair the essence of the right to a judicial hearing. The Court of Appeal treated Halsey’s comments that courts “cannot compel mediation” as obiter. Halsey continues to guide costs consequences for unreasonable refusal to mediate where ADR has not been ordered.

The CPR now provides a coherent framework supporting proactive ADR, including the court’s active case management role, its power to order engagement with ADR and its ability to take conduct concerning ADR into account when determining costs.

Practical Implications for TCC Case Management

Parties should be prepared to address ADR substantively and early.

At and before the first CMC, parties should be ready to identify suitable ADR processes, explain timing and proportionality, and address whether a short stay is appropriate to facilitate ADR. The court will expect a clear account of steps taken, outcomes to date and proposals for next steps, including ENE where appropriate.

When making or responding to ADR proposals, parties should act promptly, set out principled reasons for accepting or declining, and keep positions under review as the case develops.

On costs, parties face risks for unreasonably refusing ADR or failing to comply with an ADR order. Where ADR has not been ordered, the Halsey factors remain relevant to whether any refusal was unreasonable.

Key Takeaways

• Expect the court to press for ADR early on TCC cases, with power to order engagement but not to compel outcomes.
• Be prepared to justify any decision not to attempt ADR, including by witness statement within 21 days if refusing a proposal.
• Use ENE where other ADR has not succeeded; multiple ADR attempts may be appropriate.
• Factor in real costs risk for unreasonable refusal or non-compliance with ADR orders.

The Temple Perspective

The ‘direction of travel’ is clear: ADR is becoming a more prominent part of the management of TCC disputes, with parties expected to consider the opportunities for settlement actively and at an earlier stage.

From an ATE perspective, this reinforces the value of considering litigation risk, costs exposure and the potential routes to resolution throughout the life of a case, rather than viewing settlement and litigation strategy separately.

Temple Support

Temple’s ATE policies can include a 30% reduction in the ATE premium where legal action is settled against all opponents at a formal mediation, subject to the terms of the relevant endorsement. Temple’s premiums are also deferred and contingent on success.

If you would like to discuss your construction case requirements, please contact Jamela Collins, Technical Underwriting Manager at Temple Legal Protection, on 01483 514871.