Build Magazine September 2015

Build Magazine 21 Inside the Industry consider therefore if you are happy for a judge to see what you are saying in any communication. • Any meeting arranged to discuss the issues should have a clear agenda and set out from each side what issues need to be considered/addressed and what you want to achieve. This will hopefully reduce and avoid minor issues or other matters clouding the real issues that need to be resolved. • Seek to agree that the meetings to discuss reso- lution of any dispute are ‘without prejudice’. This may mean that the parties are more willing to have a frank exchange of views without any proposal later being used against them. However, making all communications ‘without prejudice’ does not pro- tect you. Only genuine attempts to resolve a dispute that are reduced to writing can be withheld from disclosure if Court action is later necessary. • Consider involving a third party to attend any meeting as an independent observer so there is less opportunity for misunderstandings or disagreements as to what has been said/agreed, and also to help try and keep matters civil. • Do not undertake rectification work or seek to en- gage alternative contractors without ensuring there is a clear record of the condition of the works about which any issue has arisen and the other party has been given a right to insect; • Consider formal mediation. A mediator is trained to facilitate resolution. The fact that feelings and tempers are running high is often a bar to resolu- tion. The process of mediation allows an exchange of views and more varied options for possible reso- lution to be explored in a format that will not allow feelings and emotions to take over. Mediation avoids confrontation whilst allowing the parties to fully vent their feelings and get points across to the mediator in closed sessions. It may also save money in the long run as mediation is cheaper than Court action. Mediation is a particularly effective option and is encouraged by the Courts in smaller domestic building disputes. • Consider and seek to agree to the appointment of a jointly instructed inde- pendent expert where issues as to quality of work or responsibility may need to be decided - so that the likelihood of further disputes on those issues is minimised. You could ask for nominations from a professional body so there is no sugges- tion or perception of bias. It is sometimes also possible to agree that the findings or recommendations of the independent expert will be followed which can avoid further dispute. • Construction and engineering disputes (which includes claims for negligence relating to construction professionals) have a pre-action protocol that is set out in the Court rules and that should be followed before any proceedings are issued. This is designed to try and resolve the dispute without the need for court action, or to at least narrow issues; • For certain construction disputes, there may also be the availability of adjudication under the Housing Grants, Construction and Regeneration Act 1996 which is often a swift method of obtaining a decision on a relevant dispute. • Always have in mind that whatever the rights and wrongs, the costs of a fully disputed Court case may be more than the sums involved. Court cases do not drain only your finances; they can be long running, stressful and divert you from more productive activity. The recent high rises in Court fees for claims above £10,000 are also now a factor that needs to be consid- ered. In lower value claims the fee is now 5% of the claim value for claims between £10,000 - £200,000, with a maximum of £10,000 for claims in excess of £200,000. This is a substantial rise from the previous maximum fee and there is also a sugges- tion that these may increase further. There will always be times when resolution is not possible. If the dispute has to be decided by court action, then seeking proper advice will be necessary to ensure that the correct action is taken or formalities followed under the contract and within the law. The options for adjudication or arbitration should also be considered where appropriate. In terms of seeking payment for invoices where there is not a genuine dispute consider- ation can also be given to alternatives to court proceedings, such as proceeding with a statutory demand and invoking the winding up jurisdiction, in suitable cases. This is often a useful tool but cannot be used if there is a genuine dispute. Helen Hall, Associate Solicitor Litigation & Dispute Resolution at Colemans-ctts (a trading style of Simpson Millar)