DISPUTE RESOLUTION

Often construction projects proceed with relatively few problems. However, disputes can and do arise in all sectors of the industry, whether on a multi-million dollar international project or a residential extension
Arbitration
 

Arbitration can be a cost effective alternative to Court and the process is confidential. The Award is binding and there are limited grounds for challenging the Arbitrator’s Award.

 

Colin Featherstone is a practicing arbitrator who trained via the College of Estate Management and completed pupillage with the Chartered Institute of Arbitrators in 2006. He is registered on the CIArb business to business arbitration scheme panel, pandemic panel, ABTA Travel and Travel Industry Panels. 

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Adjudication

 

Adjudication in the UK is a contractual or statutory right under Part II of the Housing Grants, Construction and Regeneration Act 1996 (HGCRA 1996) or the Statutory provisions of the Scheme as applicable. Since the introduction of the Local Democracy, Economic Development and Construction Act 2009 (Part 8) Contracts no longer need to be in writing and Withholding Notices have been replaced by Payless Notices.

 

Adjudicator’s Decisions are temporarily binding until the matter is referred to Arbitration or Court, though statistically the majority of adjudication decisions are not challenged. 

 

Adjudication in the UK is a contractual or statutory right under Part II of the Housing Grants, Construction and Regeneration Act 1996 (HGCRA 1996) or the Statutory provisions of the Scheme as applicable. Since the introduction of the Local Democracy, Economic Development and Construction Act 2009 (Part 8) Contracts no longer need to be in writing and Withholding Notices have been replaced by Payless Notices.

 

Colin has acted as adjudicator on a number of occasions.

Expert Determination
 

The parties may appoint an independent expert in the specific field to value the works, decide the contractual position, a technical issue or to determine a specific issue. It is a confidential process. The decision may be legally binding by prior agreement of the parties. The Expert is not obliged to give reasons.

Expert Determination can be applied to construction, finance, accountancy, property valuation, insurance wording, sale of goods, fitness for purpose and boundary disputes.

Colin Featherstone - Academy of Experts

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Mediation

 

Mediation is a means of bringing the parties together in an attempt to reach an agreement. It is usual to use a neutral venue with breakout rooms where the Mediator can discuss with each party, in confidence, its case and grievances.

 

The Mediator will bring the parties together to air any compromises or points of contention. The outcome is non-binding unless the parties agree to that effect. 

Residential Occupiers and Home Owner Disputes
 

The Construction Act specifically excluded work to a dwelling occupied or which is intended to be occupied by a residential occupiers as defined by s106. The intention behind the drafting of the provisions was to protect consumers (i.e. the residential occupant) from Businesses (the builder) which was perceived to be an unfair position. So where does this leave the home owner?

Certain forms of contract, do provide for Residential Occupiers to adjudicate: 

  • The JCT Minor Works contract Guidance Note 8 points out that if the parties adopt the contract unamended, the Client is committed contractually to the form of adjudication provided therein.

  • The RIBA Domestic Building Contract 2014 offers mediation, arbitration or adjudication.

  • The RIBA Concise Building Contract 2014 makes adjudication available by pre-selection.

  • The JCT Building Contract and Consultancy Agreement for a Home Owner / Occupier provides for contractual adjudication for consumers.

  • Certain Trade Organisations such as the Federation of Master Builders (FMB) also provide adjudication procedures to both home owners and its members whereby both parties must consent to the adjudication.

For impartial & confidential advice, please contact us here.

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We would recommend that all construction work is undertaken under a written form of contract and that proper legal advice is sought before proceeding.

In a situation where there is no written contract (now admissible in adjudication courtesy of s139 of LDEDCA 2009) and therefore no provision for ADR, the parties may still agree to adjudicate when a dispute has arisen (Damsalla v Dyason) and could even agree the decision of the adjudicator is “binding on a final basis” (Khurana v Webster Construction).

For impartial & confidential advice, please contact us here.

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