We recently hosted an event looking at proving and resolving construction disputes. Carlo Taczalski of Crown Office Chambers and Sam Bawden of Holmes & Hills solicitors joined Edward Carolan for a discussion with Annie Clift chairing the discussion on dispute resolution in 2020 and beyond.
If you missed this session, there will be another chance to catch it with the CIOB in a few weeks. Sign up at https://events.ciob.org and we will have a full recording available after that event.
Dealing with & Preparing Loss and Expense Claims
When preparing a claim, Edward highlighted the importance of clarity, especially the need to carefully identify what the cause and subsequent effect are and what the relevant clause in the contract is that will lead to entitlement. Whilst success is not guaranteed, if you keep good records and are able to demonstrate delay or disruption then if a dispute arises, preparation will make things easier.
Sam noted the story of a client who presented him with a contract with a schedule of amendments but none of the amendments bore any relation to the main contract document. The biggest pitfall he comes across tends to arise around notice requirements, and clauses requiring an assessment before a claim can be made. Often people don’t note the times and requirements of what are known as ‘conditions precedent’ for entitlement to loss and/or expense.
Resolving Disputes in 2020 and Beyond
Sam notes that statutory adjudication is by its nature a quick and dirty system, whereas the court tends to allow time for accuracy. In court, it should be possible to recover both legal costs and the award, which is not possible in adjudication.
2020 has seen a substantial change in the way courts operate, with a triage system in place. There has also been a shift in preference towards virtual hearings. The hearings Sam has been involved with during the pandemic have surprisingly not been subject to delay. When carried out virtually, advocacy and cross-examination can be a little more difficult and there can be more interruptions. However, there are benefits. For example, in many cases, the timing of hearings has improved and there is less travel and waiting time.
The High Court, Carlo says has been working well despite the current climate, particularly with the level of take-up of virtual hearings. In June-July more hearings had been heard than in the same period in 2019. The judiciary have done all they can to keep things moving. There are still some delays in timings, but that is always likely to be the case. He suggests it may be preferable to use the high court over the county if possible, to try and ensure you get a judge with a little more experience in commercial disputes.
War Stories: Dispute Hearings & Cross-Examination
Sam believes that the fastest route to dispute resolution will be a pre-action settlement. However, as always, it takes two to compromise. An assessment is crucial to help identify what the best commercially viable settlement is. If court can be avoided that is normally positive, but it is not always possible.
Going to court involves a lengthy process. Once a claim has been submitted, the court will then set out a timetable. There is always a possibility that the timetable will go off on a tangent if part of the process is not completed as expected. There are litigants who will know how the system works and will tactically it to their advantage. This can cause delays. In Sam’s experience, an 18-month delay could happen right at the end of the dispute process.
Carlo stresses that is incredibly important to think through tactics and strategy before starting any dispute resolution process. Consider carefully what your aim and purpose is.
Quite often where a party is not demonstrating their case clearly, difficulties arise, says Edward. Where parties are unclear in their communications it will be more difficult to resolve any dispute. Dispute processes can be extended where parties try to fudge issues or are not clear.
Carlo says preparation is key in cross-examination, especially, getting documents and witness statements ready and concise. Everything requires contemporaneous, factual evidence. The High Court has started to suppress what they see as documents a witness will be unable to explain.
It is very important to evidence any statements – even something as simple as a WhatsApp message confirming a conversation can be helpful. If in court, you don’t know the answer to something, say so.
Preparing for Court
In preparation for court, Sam advises documenting everything. Ensure, that you’re clear about what you should have been doing under the contract and you can be confident you did act in accordance with the contract.
Common mistakes: Carlo mentions are lying in court, or not answering the question or on remote hearings – not realising you’re actually still in court. The rules that would apply in court still apply remotely.
Thank you to Carlo and to Sam for their valuable contributions and to Annie Clift of Limeslade for hosting.
Join us again on 10th November 2020 when we re-run the event with the CIOB.