How not to have your day in court
Introduction
On 3 July Ashfords hosted a talk by His Honour Judge Havelock Allan, the Bristol Technology and Construction Court Judge and Her Honour Judge Frances Kirkham his Birmingham counterpart Her Honour Judge Kirkham gave an interesting view of those construction disputes which regularly come before the Court.
She suggested that these disputes can be broken down into two main categories :-
- risk and ambiguity
- formation of contract
Risk and Ambiguity
The Judge said that one of the main causes of disputes reaching her Court are when one party to a construction project seeks to push liability for all risks down the contractual chain often to sub-contractors who are ill-equipped to manage such risk. The Judge also mentioned design liability and the interface between professional designers and specialist sub-contractors as being a fertile ground for disputes and that disputes frequently arise where an employer uses his own design team and then imposes his design on a design and build contractor.
Formation of Contract
The Judge commented that in practice this is a difficult area. The parties often disagree as to the terms of the contract made and ask a Judge to tell them what those terms were. In such disputes the original scope of works contracted for is often not clear.
The Judge felt that the parties should look at mechanisms to avoid disputes arising in the first place and mentioned Dispute Resolution Boards and Mediation. The Judge also mentioned the matter of the Pre-Action Protocol for Construction Disputes which the parties are meant to follow before issuing any Court proceedings. She indicated that the Court expects these to be followed in a way that is proportional to the value of the claim. The Court would not expect the protocol to be followed to the letter in a claim worth less than £100,000.00. On the other hand, the Judge indicated that the Courts are alive to the failure of a party to adequately follow a pre-action protocol and the possibility of costs sanctions against such a party
It seems that the Technology and Construction Court will now look at new ways in assisting parties to construction disputes to resolve their disputes, for example, telephone hearings, use of email, video conferencing and dealing with matters on paper. In addition, the London Technology & Construction Court is running a pilot scheme whereby a Judge can be nominated by the parties as Mediator. It remains to be seen whether this will find favour with litigants and whether Judges who are trained to make decisions are best placed to mediate the settlement of a dispute as the parties' interest rather than their strict legal entitlement can often be the key to obtaining settlement.
Ashfords is regulated by the Solicitors Regulation Authority. The information in this article is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.
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