Construction Disputes, A Different Way…

Senior Quantity Surveyor Nick McGuire explores a different approach to construction disputes

It is 24 years since the Construction Act 1996 introduced statutory adjudication to the UK construction industry. At my then tender age I had no interest – or concept – of the impact this piece of legislation would have on the industry.

It is safe to say a lot has changed in those 24 years, including what seems a more legalistic approach to adjudication[1]. With this more legalistic approach, it would be reasonable to assume the best course of action is to bring your usual construction lawyer to the table to represent you in raising or defending a claim. However, is this the case, and is there an alternative?

Research completed by the Adjudication Society indicates that:

• 39% of adjudications relate to a payment / pay less notice dispute
• 18% relate to the interim valuation of work done to date
• 16% relate to the final account[2].

When you add the calculation of delay damages / liquidated damages into the mix at a further 2%, 75% of all adjudications are raised based on a payment or quantum issue.

There is no doubt that your usual construction lawyer is more than capable of preparing and presenting your claim to an adjudicator. However, can they:

• critically appraise the valuation of your – or the other side’s – applications and / or variations?
• highlight potential weaknesses or pitfalls in the valuation of the claim?
• assist you in rectifying those weaknesses or pitfalls, or defending against them, as the case may be?
• assist in preparing an extension of time to alleviate the imposition of delay / liquidated damages?

Your usual construction lawyer needs outside expertise, often in the form of an expert witness, to fulfil the above roles. This would come at an additional cost which may be prohibitive. At Cooper & Hall we have the experience and knowledge to fulfil these roles, and both prepare and present your claim to an adjudicator.

In summary, we are not saying ‘ditch’ your usual construction lawyer. What we are saying, is that there are alternatives to consider that may be more advantageous to you. If you have a dispute which you would like to discuss, please get in touch.

If you have decided that your construction lawyer is the best person for the job, based on the intricacies of your case, then we may still be able to assist with our Expert Witness Services.

[1] J Milligan & A Jackson – Adjudication Society – Report No. 19

[2] Adjudication Society – Report No. 18 Part Two

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