The new TCC Guide 2026: What it means for your business

Our observations

Reviewing the 2026 Guide, three broad themes emerge: first, Building Safety Act 2022 (“BSA”) litigation is becoming a mainstream component of the TCC's business rather than a specialist subset. Second, the TCC is increasingly prepared to intervene in how disputes are managed, particularly in relation to alternative dispute resolution (“ADR”) and costs. Third, technology is no longer treated as peripheral to litigation practice, with the 2026 Guide expressly addressing both AI and modern disclosure techniques. Read together, the changes suggest a court seeking greater control over the shape and pace of proceedings. Parties will need to make decisions about ADR, venue, costs and technology earlier, record those decisions more carefully, and be ready to explain them through the lens of the TCC’s case management objectives.

Key Changes

1. BSA proceedings

The 2026 Guide contains a dedicated section providing helpful practical guidance on BSA matters, which are described as “an emerging area” of TCC business. BSA remedies include remediation orders (“RO”) and remediation contribution orders (“RCO”), both of which are remedies that can be made by the First-Tier Tribunal (“FTT”) (which, as a tribunal body, is not part of the High Court). BSA claims (particularly ROs) will often turn on technical and engineering questions i.e. the nature and extent of defects, the adequacy of remedial schemes, causation, and the identity of responsible parties across complex supply chains. In practice, there can be significant factual overlap between an RO, RCO and the types of BSA orders which are within the jurisdiction of the TCC (Building Liability Orders and Information Orders), and the 2026 Guide acknowledges that these powers could give rise to parallel proceedings in two forums, in relation to the same building(s).

As a case management exercise, the 2026 Guide provides that, in certain circumstances, both sets of proceedings could be heard together, by a TCC judge, sitting as a judge of the FTT. Recent TCC case law has shown how this may work in practice. In the case of Wallace Estates Ltd v Durkan Estates Ltd , which was fundamentally a case concerning an RO, a TCC judge and the president of the FTT sat together as a panel and applied the standards that parties in the TCC would ordinarily expect in terms of disclosure and witness statements. Whilst the FTT has historically operated with more streamlined procedures and lower procedural expectations, this convergence with TCC standards has very material implications for the cost of BSA claims, in particular when considering expert evidence. TCC users will be familiar with the more adversarial approach taken to expert evidence, in line with CPR Part 35 requirements and including formal expert meetings, joint statements and “hot-tubbing”, often with multiple experts in multiple disciplines. FTT proceedings are much less adversarial, with both the scope of expert issues and number of experts reduced as a result.

Our experience in the TCC suggests that, without careful planning and scoping of both the disclosure and expert evidence phases, costs can escalate quickly, and this brings with it concerns over access to justice. Some of the applicants seeking ROs and RCOs to date have been groups of individual leaseholders who may find the costs of complying with TCC style disclosure requirements and expert processes prohibitive.

If RO proceedings are going to be conducted to TCC standards when heard by a TCC judge sitting as an FTT panel member, this effectively imports the full procedural apparatus of High Court litigation into what was designed to be a more accessible tribunal remedy. Clients need to understand that bringing an RO claim may now look and feel much more like a TCC claim in terms of disclosure burdens, expert evidence, and costs exposure.

The 2026 Guide’s new section on BSA claims also addresses some of the concerns we raised about the TCC’s workload in a previous article “Are Remediation Orders and Remediation Contribution Orders storing up trouble for the TCC?”, albeit primarily at the procedural level. It establishes a clear process for RO and RCO applications, confirms assignment to TCC judges in certain circumstances, and provides for case management directions. These provisions should help manage the administrative burden of such claims. If BSA caseloads continue to grow, there may be implications for listing times in traditional TCC disputes; reinforcing the importance of early case management and realistic timetabling.

Practically speaking, the update will mean that claimants should have a clearer route to pursue remediation claims. Note that there is also a new ‘BSA questionnaire’ to complete before bringing a claim in the TCC. For defendants, it is important to be aware of the new streamlined procedure, as it may mean you have less time to respond once proceedings are issued.

2. Strengthened ADR provisions

The 2026 Guide significantly strengthens the TCC’s approach to ADR. Consistent with Churchill v Merthyr Tydfil County Borough Council , the 2026 Guide makes clear that the TCC expects parties to give “serious consideration” to ADR and the TCC can and will order parties to engage in ADR in appropriate circumstances, in some cases with a direction as to the type of ADR to be considered. It notes that, in most cases, mediation is the appropriate procedure, although other procedures, such as Early Neutral Evaluation and the Court Settlement Process, remain in the 2026 Guide.

The 2026 Guide emphasises that timing is a key issue when considering ADR and makes the point that the later ADR takes place, the more costs will have been incurred, often unnecessarily. Legal advisors are required to ensure that ADR has been carefully considered prior to the first case management conference (and should document this), and the court will expect to be addressed on the topic of ADR at the CMC. A short stay for ADR is to be actively considered as part of the directions at the CMC.

Practically, this means that, in advance of the first CMC, parties should consider not just whether mediation may be appropriate, but their preferred mediator appointing body and, going even further, the identity and availability of their preferred mediator.

This update is unsurprising and follows the general trend across the courts, and parties should be prepared to give clear reasons if they have not engaged (or refuse to engage) in ADR. A party that unreasonably refuses to participate in ADR, or fails to co-operate fully with an ADR process ordered by the court, may face adverse costs consequences or other sanctions, even where it is ultimately successful in the proceedings.

3. Guidance and Rules on Artificial Intelligence

The 2026 Guide expressly addresses the use of AI by legal practitioners. In contrast to the TCC’s positive statements on ADR, the stance on use of AI, whilst accepting that practitioners may choose to utilise the technology, is far more neutral.

Legal representatives are reminded of their obligations to the court, to take responsibility for all work product which has been generated through AI, and to be prepared to confirm the verification they have undertaken to confirm the accuracy of research. In short, AI may assist with the conduct of litigation, but it cannot dilute the lawyer’s responsibility for accuracy, professional judgment, or compliance obligations.

This is a common sense approach - acknowledging that parties will use AI in the conduct of litigation, but reminding them that they must take appropriate steps to verify the accuracy and appropriateness of the material being submitted. This is fundamentally a responsibility for legal representatives but should similarly be considered by clients.

All users of AI will be aware of its potential to materially reduce the costs associated with certain aspects of litigation, most notably disclosure. Whilst the approach in the 2026 Guide may be viewed by some as a missed opportunity to positively affirm the use of AI, the more cautious stance is appropriate given the pace of change in this novel area.

4. Updated disclosure practice

The 2026 Guide updates all previous references to the Disclosure Pilot to reflect Practice Direction 57AD (now the “Disclosure PD”), which places greater emphasis on using appropriate technology and analytical tools to keep disclosure proportionate, and has now been permanently adopted.

The 2026 Guide emphasises early discussions between parties on e-disclosure matters, including custodians, date ranges, and keyword terms, to avoid later disputes and disclosure review hearings. Parties are encouraged to consider whether the simplified procedure for less complex claims under Appendix 5 to the Disclosure PD might offer time and cost savings.

For BSA matters, which often relate to historic projects, electronic versions of data may not always be easily available. Early engagement with relevant internal and external IT experts, plus archived materials where relevant, will be beneficial for both parties and is encouraged. As noted above, if TCC style disclosure is to be adopted for BSA proceedings, this will involve significantly increased costs and require far more engagement than the FTT approach.

Legal teams should raise disclosure issues, including custodians, date ranges, and search terms, at the earliest stages of a dispute. Early agreement on these matters can significantly reduce costs and avoid contested hearings.

Key Takeaways

The 2026 Guide requires parties to make certain key litigation decisions earlier; for example, ADR, disclosure, costs and use of AI and to justify them throughout the case. For businesses, the relevance is not simply what has changed, but how those changes are likely to shape litigation strategy. Convergence between the TCC and FTT means you should plan for TCC level procedural demands even if you are in the FTT.

The key points are:

• Early analysis - undertake a holistic analysis of the benefits of commencing proceedings, whether in the TCC or otherwise, as early as possible. BSA claims which should be commenced in the FTT could be case managed in the TCC. Both sets of proceedings can be prepared in parallel.
• Don’t resist ADR without good reason - the court can now order the parties to engage in ADR and if you refuse unreasonably, you risk adverse costs even if you win the case. Before the first CMC, identify the appropriate process, your preferred mediator and appointing body, and a realistic timetable for engagement. If you decline ADR, document a specific, defensible reason.
• Use AI responsibly - AI tools may be used to assist with case preparation, but professional responsibility for accuracy remains entirely with the lawyers who deploy them. Build independent checking of citations, authorities and legislation into your workflow, maintain an audit trail of AI use and verification, and be ready to explain those steps if challenged.
• Budget for the front-loaded pre-CMC phase - The 2026 Guide's emphasis on early case management means the pre-CMC phase will be more expensive and more demanding than before, especially if TCC style case management is going to be used in the FTT.
• Disclosure - If TCC style disclosure is contemplated, then you need to identify custodians, date ranges, search terms, and archived records early.

The overall effect is to push key litigation choices earlier in the process. The amendments may appear procedural, but they are likely to influence how parties assess settlement options, budget for proceedings, prepare evidence, choose venue and manage compliance throughout the life of a TCC claim, from pre-action strategy through to trial preparation and costs recovery.

If you have a current TCC claim, potential BSA exposure, or are considering issuing proceedings, now is a good time to review how the 2026 Guide affects your position.

Our Construction and Engineering team has extensive experience advising clients on TCC proceedings across all sectors, from major infrastructure projects to building safety claims. We regularly act for developers, building owners, and professionals in complex construction and engineering disputes. Our contact details are below if you need any advice.