The landscape of construction disputes has altered almost beyond recognition since I began my career nearly 25 years ago.
In those days, a client with a construction dispute instructed me to open his case by sending the other side a writ immediately – believing that commencing Court action, as soon as possible, was the only way to progress his claim. With many months or even years passing before a case came to trial, time was indeed of the essence then. Today, litigation looks very different.
The last resort
For a start, today the specialist Technology and Construction Court (TCC) focuses on ensuring that litigants only come to Court as a last resort and, if they do get there, that the case is heard much faster.
For example, the 2014 revision of the TCC Guide requires parties to a construction dispute to follow the Pre-Action Protocol for Construction and Engineering Disputes (the Protocol) before they initiate Court proceedings. This encourages an open and early exchange of information about a claim, and the defences to it, with a view to avoiding litigation, by agreeing a settlement, before the proceedings begin. The Protocol obliges the parties to meet, without prejudice, at least once in order to identify the main issues, and to discuss how they might be resolved without recourse to litigation.
The TCC Guide also suggests that some form of Alternative Dispute Resolution (ADR) should be considered. While there is a wide range of different techniques for the voluntary resolution of disputes, mediation is becoming increasingly popular in construction cases. It is particularly suitable for the resolution of multi-party disputes, or where settlement can be achieved through commercial solutions, which could not be ordered by a court. For those looking for a good reference guide, the Jackson ADR Handbook (2013) to the various techniques comes well recommended – not least by the TCC Guide!
In order to ensure that the Protocol is implemented, the TCC requires the parties to complete case management information sheets, which they have to file with the TCC at an early stage in each case. These have to state whether:
- the Protocol has been complied with and, if not, why not;
- the parties wish the TCC proceedings to be suspended to allow negotiations or ADR to take place.
The TCC also has teeth to punish those who do not engage in the process. For example, it is prepared to impose sanctions, particularly in the form of adverse costs orders, on parties who flout the Protocol, or who reject reasonable offers from the other side to engage in ADR.
The result is that the days of simply starting proceedings in a construction dispute, by “firing out a writ”, are very much behind us.
Anthony Albertini, Partner at Clyde & Co