Contentious

Adjudication

All "construction contracts", as defined by the Housing Grants Construction and Regeneration Act 1996, as amended by the Local Democracy, Economic Development and Construction Act 2009 confer the right for either party to have a dispute referred to a construction adjudicator, rather than to court or arbitration. Adjudication is now the commonest method of resolving disputes in the construction industry. The aim of adjudication is to resolve the dispute quickly and cost-effectively. The adjudicator will endeavour to reach a Decision within 28 days. An adjudicator's Decision is binding, and enforceable through the courts.

Currently "residential occupiers" are excluded from the remit of the Act although "residential occupier" is narrowly construed. Westfields Construction Ltd -v- Clive Lewis [2013] EWHC (TCC). All standard forms including JCT Minor Works and RIBA appointments nevertheless contain an adjudication clause which may catch out the unwary home-owner.

Jane is experienced in bringing and defending disputes in adjudication for contractors, sub-contractors, consultants and owner/occupiers. She also advises claims consultants and adjudicators on legal aspects of adjudication and construction disputes.

Arbitration

Some construction contracts take advantage of arbitration in preference to court proceedings. It is a confidential and bespoke procedure. Arbitration is governed by the Arbitration Act 1996 and additional procedural rules may be incorporated into the contract, such as CIMAR. The arbitrator will be engaged upon his/her conditions of appointment. Jane is experienced in arbitration claims and procedure. She is a Fellow of the Chartered Institute of Arbitrators.

ADR/Mediation

Many development agreements and sophisticated construction contracts contain a dispute resolution hierarchy, to give the parties the best opportunity to meet and resolve any dispute by negotiation before embarking on lengthy and expensive litigation. One option is mediation which enables an independent mediator to facilitate a commercial settlement, or indeed if requested by all parties, to give an opinion on the merits of the respective arguments in order to reach a realistic settlement whilst avoiding the costs of litigation or trial.

Other forms of Alternative Dispute Resolution include conciliation and expert determination.

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