We understand that when construction disputes arise, they can be stressful, costly and timely – three things we all wish to avoid where possible. That’s why we always strive to resolve disputes before formal proceedings (Court or otherwise) become necessary. However, that is not always possible.
In the event that the Court process becomes necessary and arise, then our expert team are here to support you, explain each step of the process, and assist you in protecting your interests.
Get in touch with our disputes team
Pre-Action Protocol
The Pre-Action Protocol for Construction and Engineering Disputes (“Pre-Action Protocol”) is part of the Civil Procedure Rules (CPR) which govern the process of how construction disputes in England and Wales are to take place.
The purpose of the Pre-Action Protocols is to allow parties the opportunity to have open communication with each other and to encourage settlement before litigation takes place.
At Palmers, we provide ongoing support and advice to ensure that the Pre-Action Protocol is followed throughout your construction dispute, to avoid unnecessary legal costs and pinpoint the issues of the dispute early on.
Alternative Dispute Resolution (“ADR”)
Part of the Pre-Action Protocol is to encourage ADR.
ADR are alternative ways to settle a dispute, without the need to issue Court proceedings, which is strongly encouraged by the Courts.
It assists, for example, if you seek to maintain the relationship between the parties in dispute, it avoids unnecessary costs and solves construction disputes in a timely manner.
The different types of ADR are: negotiation, mediation, adjudication, expert determination and arbitration.
- Negotiation – this method of ADR involves corresponding with the other party in settlement conversations to reach a mutually acceptable agreement between the parties.
- Mediation – in this method of ADR, a mediator (independent of the parties) will seek to move each party to reach a mutually acceptable agreement. The mediator does not, however, make binding decisions upon the parties, but instead allows each party to communicate openly with one another.
- Arbitration – this method of ADR involves an arbitrator(s) determining the dispute. It follows a similar process to Court proceedings and will often have similar stages. The decision of the arbitrator is binding on the parties.
- Adjudication – adjudication is a process that involves the appointment of an independent third party “an adjudicator” to determine the dispute between the parties. It is a process unique to the construction industry and can be used for a range of different disputes. It is often referred to as “rough justice” because it occurs typically over a 28-day period and is dealt with usually by written submissions only. The Adjudicator determines the dispute, and their award is legally binding on the parties. It is quicker and cheaper than Court proceedings (albeit you are unable to recover your costs) and can be a very useful tool to seek to resolve disputes.
- Expert Determination – this method requires the parties to agree for an independent expert to determine the dispute between the parties. It can be used in a range of disputes such as defects or account issues. The parties typically agree to be bound by the expert’s determination.
Litigation
Should ADR between the parties be unsuccessful and engaging in litigation become necessary, our team of specialist construction solicitors in Essex can advise and support you throughout the Court process.
Generally, construction disputes are heard in the Technology and Construction Court (TCC), which deals with complex construction disputes, however, this Court will only deal with the most high value and complex cases.
In other cases, there are specific Courts which have TCC lists.
It is good practice to ensure that a claim is issued and/or dealt with in the correct Court to ensure that you are allocated a judge familiar with construction law and projects.
We are experts in this field and can provide you with support from the outset.
We will work closely with your instructed Counsel, witnesses and experts to provide you with the best possible opportunity to succeed at trial.
Although we cannot guarantee the outcome at trial, we will use our best endeavors to ensure your best opportunity of success at trial.
