Building Alteration Disputes

The last 12 to 24 months has seen an increase in building and refurbishment works taking place in both residential and commercial properties. A building dispute usually arises between a building contractor (or other professional engaged to assist with the works) and a party that has engaged the contractor(s). Typical building disputes may include (but are not limited to) the following complaints:

1. The contractor has failed to use reasonable care and skill in completing the project.
2. The contractor has failed to complete the works and is retaining a sum of money.
3. The contractor has failed to complete the works in accordance with the timeline provided for in the contract.
4. The contractor or party engaging the contractor have failed to comply with terms of the contract including complying with the schedule of payment.

These types of disputes can be rather complex for a number of reasons:

1. There are normally multiple parties involved in building disputes such as architects, surveyors and building contractors and therefore, it is essential that care is taken to understand which party or parties are at fault. This is not always a straightforward task.
2. There are not always written contracts in place and therefore, focus turns on the oral agreement and the corresponding evidence as to what was agreed between the parties.
3. Where there are signed written contracts in place between the parties, these are not always drafted well and may at times leave open ambiguity and uncertainty.
4. Some contractors may not have very much by way of assets. Therefore, even if a claimant succeeds in court with a favourable judgement, there may not be very much by way of assets to enforce against.

1. Engaging with the other party – Whether you have engaged the contractor or you are the contractor, there is merit in attempting to communicate with the other party to try and resolve the dispute prior to engaging legal teams. Construction disputes have a tendency to escalate rather quickly. Therefore, to the extent you can resolve the dispute without having to engage lawyers, this should be attempted. If need be, you may consider early mediation to try and allow an opportunity for early resolution.

2. Pre-action correspondence – If you are unable to resolve the dispute informally, a member of our team will be able to assist in advising you on the relevant steps to take from a legal standpoint. This may involve your legal team complying with a special protocol known as the Pre-Action Protocol for Construction and Engineering Disputes. The main aim of the protocol is to encourage the reciprocal exchange of information between parties at an early stage. Our experienced team can assist you with complying with this protocol.

3. Checking the financial health of the other party – From the outset, we advise that it may be a useful exercise to explore the financial health of your opponent. This will assist in understanding whether further protracted legal action is likely to be a useful exercise.

4. Engaging Experts – Lawyers and judges often rely on experts to assist in understanding the technical issues to a building dispute. Therefore, if there is an issue over workmanship or the likely costs of rectifying the mistake(s) made, our team will liaise with specialist building related experts to assist with this exercise. The experts may wish to complete a site visit to understand the defects in the works and are likely to produce a report to set out their findings. This report may be helpful evidence should matters end up in front of a court.

5. Alternative Dispute Resolution – There is an expectation on the parties to attempt to resolve disputes by way of alternative dispute resolution which could include mediation, arbitration or adjudication. Court action should only be used as a last resort.

6. Court – Where matters cannot be resolved informally or via Alternative Dispute Resolution, it may be necessary for court action to commence and the court will generally set the timetable for the disclosure of documents process, inspection of documents, exchange of witness statements and expert evidence ahead of a trial date.

Whether you are a contractor or party that have engaged the contractor, our team will assist you in:

1. Discussing the issue and setting out a strategy as to dealing with the building dispute.

2. Carrying out initial discussions with the other party with the aim of trying to resolve the dispute efficiently and amicably.

3. Carrying out investigations on the other party to better understand their financial health.

4. Complying with the Pre-Action Protocol for Construction and Engineering Disputes.

5. Drafting pre-action correspondence.

6. Reviewing any responses from the other party.

7. Working closely with experts to understand issues relating to liability and quantum of a case.

8. Advising on merits of the case.

9. Partaking in alternative dispute resolution on your behalf.

10. Commencing court action and complying with the court timetable for each step of the litigation.

11. If a judgement is made in your favour, assisting you to ensure it is enforced.

https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_ced