Building disputes – the basics

Ben Pearson outlines the initial requirements and options for building disputes

Pliers, Hammer and Chisel Tools

Have you fallen out with your builder? Perhaps a project has overrun or you are unhappy with the quality of the work provided…

Building disputes can be especially unpleasant for a number of reasons.

  • They often concern unfinished or defective works in the home which can be particularly disruptive and distressing for those involved;
  • Claims can be of high value and are often met by opposing counterclaims;
  • They usually involve technical issues that require expert evidence to resolve which, if handled incorrectly, can make litigation more protracted and expensive.

Instructing a solicitor can help to guide you through what can be a very difficult time by identifying the matters in dispute at an early stage and giving you the best chance of avoiding ending up in Court.

The Pre-Action Protocol

The Court requires parties to any dispute to exchange correspondence to understand each other’s cases and to narrow the matters in dispute. In the case of building disputes, the relevant Pre-Action Protocol requires parties to summarise their claim or counterclaim including:

  • the contractual or statutory provisions relied on – this will involve carrying out an analysis of any contractual terms but also terms implied by current legislation to identify what provisions have; and
  • the relief sought – usually this will usually involve quantifying the cost of completing or remedying the works, but can extend to other indirect losses such as the cost of alternative accommodation.

In more complex cases, expert evidence may be required in the first instance to accompany pre-action correspondence.

The other side must then respond setting out their grounds of defence. If the process is followed properly it can substantially clarify matters and narrow the issues.

Failure to comply with the Pre-Action Protocol can leave a party open to criticism in any subsequent proceedings, particularly when it comes to arguments over legal costs so it is important to get it right. Taking advice at the outset will not only give you the best chance of reaching an early settlement, but it will also strengthen your position in the event that you do end up having to litigate.

Expert evidence

Invariably, resolving building disputes involves answering technical questions and expert evidence is required.

It used to be standard for both sides to instruct their own experts who would hammer out the technical issues in an adversarial way, including if necessary in Court. Best practice now is for a single joint expert to be appointed – it is cheaper and their evidence has the virtue of being decisive (albeit that parties will have the chance to raise questions of the expert’s report).

There is a formal set of rules that govern the procurement of expert evidence in Court proceedings; for expert evidence to be admissible, these must be observed.

The Court often requires the appointment of a single joint expert in the course of the proceedings so it makes sense to try to agree it pre-action where possible.

Alternative Dispute Resolution

Court proceedings should be seen as the last resort; parties are expected to have explored other means of resolving matters first.

The Pre-Action Protocol strongly recommends that there be a Pre-Action Meeting attended by the parties and advisors. The purpose of the meeting is primarily to agree next steps (for example whether to appoint a single joint expert or agree to mediate) but could extend to negotiation of an early settlement.

There may be other forms of ADR prescribed in the relevant contract. JCT or RIBA standard contracts can include a clause for disputes to be resolved by way of adjudication. Adjudication is a much cheaper and quicker process than litigating through the Courts; the application fee is £120 plus VAT and the adjudicator is paid an hourly rate of £150 plus VAT capped at 15 hours. 21 days after a site visit and reviewing each side’s statements, the adjudicator will give their decision, which is binding unless and until there is a Court Judgment to the contrary.

This article was written by Ben Pearson

Please note the contents contained in this article are for general guidance only and reflection the position at time of posting. Legal advice should be sought before taking action in relation to specific matters.

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