Construction and engineering disputes are an unfortunate reality of complex projects. Tight programmes, technical design issues, payment pressures and multiple stakeholders can quickly give rise to disagreement.
There are a range of dispute resolution procedures available, each differing in formality, cost and speed. Choosing the right approach at the right time can be critical to protecting both your commercial position and project outcomes.
The construction team at Davis Woolfe has extensive experience advising on and conducting all forms of construction and engineering dispute resolution, from early engagement and negotiated settlements through to binding court and arbitral proceedings.
Our Construction Dispute Resolution Expertise
We advise and represent clients across the full spectrum of dispute resolution procedures, including:
Litigation (Technology and Construction Court)
Subject to the terms of the relevant contract, litigation is often the default mechanism for resolving construction and engineering disputes.
Claims are typically issued in the Technology and Construction Court (TCC), a specialist court within the Business and Property Courts of the High Court. The Civil Procedure Rules, along with their Practice Directions, set the framework for how proceedings are conducted.
Claims valued over £500,000 are generally issued in the TCC, while lower-value claims may proceed in the County Court. Court proceedings result in a final and legally binding judgment, enforceable subject to limited rights of appeal.
While litigation can provide a definitive resolution, it is often time-consuming and costly. Hearings are generally held in public, meaning that proceedings and outcomes may attract press attention and form part of the public record.
Arbitration
Many construction and engineering contracts require disputes to be referred to arbitration.
Arbitration is governed by the Arbitration Act 1996 and offers parties a flexible and private dispute resolution process. A neutral arbitrator, often with specialist technical expertise, is appointed to determine the dispute and issue a binding award.
The procedure and timetable can be tailored to reflect the complexity and urgency of the dispute. Arbitral awards are final and binding, subject to limited grounds of challenge, and are widely enforceable internationally. Hearings are private and the dispute remains confidential.
Adjudication
Adjudication is a statutory dispute resolution procedure designed to enable construction disputes to be resolved quickly.
Under the Housing Grants, Construction and Regeneration Act 1996, a party to a construction contract has the right to refer a dispute to adjudication at any time. The adjudicator is usually required to reach a decision within 28 days of the referral, subject to limited extensions.
Because of the compressed timetable, adjudication decisions often represent a provisional view of the dispute. Decisions are temporarily binding and may be revisited in subsequent litigation or arbitration, depending on the contract.
Adjudicators’ decisions can be enforced swiftly through the Technology and Construction Court, making adjudication a powerful tool in payment and cash-flow disputes.
Mediation
Mediation is a voluntary and confidential process in which the parties seek to resolve their dispute with the assistance of an independent mediator. The mediator may be a lawyer or a construction professional, depending on the nature of the dispute.
Mediation is non-binding, but any settlement reached is recorded in a written agreement which becomes legally binding once signed. All communications during the mediation process are without prejudice and confidential.
The courts strongly encourage parties to attempt mediation. A party who unreasonably refuses to engage in mediation may face significant adverse costs consequences, even if successful at trial.
Pre-Action Negotiations and the Protocol
The Pre-Action Protocol for Construction and Engineering Disputes applies to most construction and engineering claims, including professional negligence claims against architects, engineers and quantity surveyors.
The Protocol encourages early engagement, the exchange of information and serious consideration of alternative dispute resolution before proceedings are issued. Effective pre-action strategy can often narrow the issues in dispute or avoid litigation altogether.
Legal Advice
Davis Woolfe advises on a wide range of residential and commercial construction disputes, including:
We act for a broad client base, including developers, contractors, subcontractors, employers, investors, architects, engineers and other construction professionals.
If you are facing a construction or engineering dispute, early legal advice can be critical. We offer an initial, no-obligation discussion to explore your options and how we may be able to assist.