Construction & Building Claims
Every construction claim or building dispute is unique, requiring specifically tailored advice to ensure a cost-effective and efficient resolution. Our team provides practical, no nonsense commercial advice to deliver the best outcome for our clients.
At BHP Law our multi-disciplinary team consists of experts who have contributed to the successful resolution of construction claims and building disputes throughout the country. Our construction lawyers have substantial experience in all aspects of building & construction litigation including: JCT contracts, major forms of standard contract and less formal agreements.
Acting on behalf of a variety of clients including owners/ developers, builders, main contractors, sub-contractors, house builders, individuals, surveyors, suppliers, architects, engineers and insurers etc.
- The Construction and Engineering Pre-Action Protocol and Practice Directions
- Proceedings in the Construction and Technology Court (“CTT”)
- Outside the court system through Mediation, Early Expert Determination, Adjudication and Arbitrations
- Advising “on both sides of the fence” in building disputes and also advising insurers regarding construction claims, building contract issues including insurance contracts and Building Guarantees and Warranties
- Access to specialist Counsel, expert witnesses, and direct industry experience
We will discuss with you what best fits your commercial objectives and the Action Plan that meets your needs. Court proceedings may be a last resort, but we examine with you what the most appropriate course is, including advice and assistance on Alternative Dispute Resolution services.
Adjudication
Adjudication is usually a speedy procedure applicable to construction contracts, derived from the Housing Grants, Construction and Regeneration Act 1996 (Construction Act 1996), known as statutory adjudication, or where the parties have agreed to refer disputes to adjudication, known as contractual adjudication.
Adjudications can be concluded within 28 days of referring a dispute to the adjudicator. The aim is to protect cash flow during the construction process. The Adjudicator’s decision is binding on the parties unless and until the dispute is determined by litigation, arbitration or agreement.
Arbitration
Arbitration is an alternative to litigation which is more formal than adjudication, but more flexible than court proceedings. The arbitrator is often someone with a construction background. The arbitrator’s decision is final and binding on the parties. Unlike court proceedings, the proceedings are private and confidential. Often carried out under the auspices of a trade body or a recognised institution The International Chamber of Commerce (ICC), London Court of International Arbitration (LCIA), the Dubai International Finance Centre (DIFC). There are approximately1200 institutions worldwide which offer arbitration services. Some deal with a particular trade or industry. Care should be taken in the selection process as some institutions may act under rules which are not adequately drafted.
Ad Hoc Arbitration
An ad hoc arbitration is one which is not administered by an institution such as the ICC, LCIA, or DIFC. As such, the parties would have to work out all aspects of the arbitration between them, such as the number of arbitrators, procedure for their appointment, the procedure for conducting the arbitration and the applicable law etc.
Provided the parties approach the arbitration with cooperation, ad hoc proceedings have the potential to be more flexible, faster and cheaper than institutional proceedings. The absence of administrative fees alone (which may be very high in substantial disputes) can be a significant factor in favour of an ad hoc arbitration.
Expert Determination
This involves the appointment of an expert who is familiar with the technical issues in a dispute. He is jointly instructed by the parties to determine the dispute between them. This is usually on the basis of written submissions only. His decision is legally binding on the parties. The process is very informal and is usually a lot cheaper and quicker than other forms of litigation.
Early Neutral Evaluation
This is a non-binding process in which an independent third party, appointed by the parties, gives an independent assessment of the merits of the claim. There is no power to impose a settlement on the parties, however, the evaluation can often promote settlement discussions.
Mediation
This process involves the appointment of an independent third party who assist the parties with negotiating their own settlement. The process is private and confidential and any settlement agreed as a result of the mediation will be binding on the parties. Mediation is widely used by the construction industry to resolve construction disputes. In broad terms, mediation of construction disputes does not differ from mediation of other disputes, except in respect of the subject matter of the disputes. However, its wide use can be attributed to the fact that construction disputes have been found to be particularly suited to mediation and there is strong judicial encouragement from the Technology and Construction Court (TCC), the specialist court dedicated to resolving construction disputes.
Other forms of Alternative Dispute Resolution (ADR)
Other methods of resolving disputes include without prejudice negotiations which can take place either at a meeting or by correspondence. Click this link for further information on ADR.
Pre-action protocol for Construction & Engineering Disputes
The Protocol applies to all construction and engineering disputes (including professional negligence claims against architects, engineers and quantity surveyors) that are heading towards litigation. The Protocol requires the parties to attend a without prejudice pre-action meeting. At this meeting, the parties are required to consider whether some form of ADR procedure (including mediation) would be more suitable than litigation and, if so, to agree which form of ADR to adopt. Interestingly, the survey revealed that parties that settled their dispute after proceedings were started were unlikely to have been involved in a mediation during the pre-action protocol phase.
In addition to holding a without prejudice pre-action meeting, the court may require the parties to provide evidence that ADR has been considered. Importantly, if a party fails to consider ADR or commences proceedings prematurely, the court must take this into account when considering costs.
Working with you
We know that in the building and construction industry, problems can sometimes arise – If a building or construction dispute occurs, BHP Law’s Building and Construction Dispute Team will work with you to ensure that it is resolved quickly and efficiently. We have a wealth of experience and will work hard to advance and protect your interests. We will present your case effectively and ensure you have the best advice and representation suited to your needs.
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