For most of the processes that you are likely to engage in when the first signs of a dispute appear, such as informal discussions, the operation of your formal complaints procedure or negotiations, you will need no professional assistance. There are no externally imposed rules or procedures to understand and to follow, and the information provided in Chapter 3 should enable you select the right approach and to manage it effectively.
In the case of the more formal processes, such as mediation and those described in Chapter 4, it may be prudent to consult a lawyer or other dispute resolution professional and your PI insurer may require this (see page 110). This is especially so if the other party has already engaged such help, because this will provide knowledge, experience and, crucially, resources which are unlikely to be available to you without similar help.
The purpose of this chapter is to identify what, even within these more formal processes, you can do for yourself and to help you to decide when you need the support of someone who has experience and training in dispute resolution.
Effectively, a mediation need involve no more than the two parties to the dispute and a mediator. In principle, therefore, where the matter is straightforward it should be possible to arrange a mediation without involving legal or other expert assistance. However, there are several reasons why it may be advisable, even in relatively straightforward circumstances, to consider calling on experienced assistance:
Before the day of the mediation you will need to prepare yourself by
Copies of these documents are likely to be requested by the mediator when he or she is appointed. They should also be provided to the other party in the dispute at a time agreed between the parties and the mediator.
You should expect to receive a similar position statement and bundle of evidence from the other party. It is essential that you read it carefully and digest it. It is important that you try to identify any logical flaws in the argument or any statements or assertions that are not supported by evidence. It is just as important to identify and acknowledge any well-supported arguments that tend to weaken or undermine your own position. If you can see areas where you may have to concede, prepare yourself to make those concessions in the interests of promoting and maintaining an open and constructive dialogue.
If you feel that you would prefer or need to have help from someone who has experience of the process, you should begin the process of identifying the appropriate people and enlisting their help as soon as possible. This will avoid abortive work and wasted time on your part if their advice leads to a reconsideration of your approach.
You should start by considering the type of help that you might need. This might range from moral support and practical help with organising papers to someone to discuss technical and practice issues with to specialist legal advice. Once you know what you need, you can start to identify the people who can provide it.
Partners or friends can provide moral support and practical help. Solicitors and barristers will be needed if legal questions are involved. Colleagues or practitioners from other practices may be able to provide a sounding board on technical matters.
If you need expert evidence, however, this must come from an independent expert who has no connection with you that might be seen to cause a conflict of interest.
If all you need is a little moral support, or some practical help with the papers and the arrangements, then business partners, senior colleagues or even family and friends may be able to provide all that you need.
If you are undertaking mediation as part of the pre-action protocol in litigation proceedings, then it is likely that you already have a solicitor managing your case. If you are undertaking it independently in an attempt to avoid a third party resolution of the matter, and have not engaged any legal assistance to date, you should seriously consider involving a solicitor if:
A solicitor will:
You should choose a solicitor who has experience of construction disputes. Your own solicitor, or your local high street solicitor, may not have such experience but should be able to provide details of a number who do. Alternatively, the Solicitors Regulation Authority should be able to help you find a suitable practice. Solicitors generally charge by the hour but some will offer a lump sum fee, if asked. At the very least you need to know the hourly rates of those who will be working on your case and an estimate of the total time that will be spent.
Counsel (a barrister) will be appointed by your solicitor if they consider that additional legal assistance is needed. This appointment may involve additional costs and should be discussed with you before it is made. This will enable you to understand exactly what additional skills counsel will provide and why these are necessary. The role of barristers generally is discussed later in this chapter, on p. 105. In mediation, a barrister is likely to be appointed in order to:
If there are disagreements about technical or professional practice matters, then experts may be required in order to provide an independent opinion as to which point of view is more likely to be reasonable. Such matters might include whether:
An expert witness is required to provide an independent and impartial opinion on the matters he or she is asked to address. Your solicitor is likely to approach several before deciding who would be most appropriate for the circumstances of your case. If you are going solo, then the RIBA, the CIArb or the Academy of Experts will be able to provide you with details of experts for you to approach.
These are people with first-hand knowledge of the events related to the dispute. They may be colleagues who worked on the project, members of the contractor’s management team, or even site operatives.
Even if your first thought is that you would be able to successfully undertake adjudication yourself, there are a number of compelling reasons why you should give serious consideration to seeking assistance:
Nevertheless, a brief outline of the steps necessary to refer a matter to adjudication are provided below.
In theory, it should be possible for an architect who is seeking a remedy from a client or seeking to resolve a dispute with a subconsultant where the matters involved are relatively straightforward to prepare the documents required in order to be able to refer the matter to adjudication and to represent themself at any hearing.
If you do decide to do this you will need to:
This is a considerable amount of work and even for a straightforward matter it is likely to take several weeks and maybe months before you are in a position to submit a notice of adjudication and the notice of referral that will follow. Once the notice of referral has been issued and the adjudication process is under way, you are likely to find that you have little or no time to give to anything else until it is over.
If you are on the receiving end of a notice of adjudication, your PI insurer is likely to require you to have legal representation. It is unrealistic to expect to respond adequately and effectively without professional assistance.
In addition to the legal contributions noted previously under mediation, solicitors may be required simply in order to provide sufficient resources to deal with assembly of documentation and preparation of submissions within the tight timetable imposed by the adjudication process.
Some parties may prefer to use a claims consultant rather than a solicitor to assist them. CLAIMS CONSUATLNTS generally have a technical background in one or more of the construction professions, most likely quantity surveying, and some legal training or qualifications. The need for separate technical expertise is thereby reduced or eliminated and the process of assembling a technically complex, but legally straightforward, claim is made more efficient.
Because of the combination of technical expertise and lower cost, contractors often prefer to use a claims consultant than a solicitor for claims relating to certificates and final accounts. A word of caution, however: the type of dispute that may involve an architect is likely to be less technically straightforward than a final account or other money claim. If this is so, then a solicitor is likely to be more appropriate to manage the process and call upon whatever outside technical help may be required.
If your case is technically complex or involves legal issues, your solicitor may feel that it would be advisable to appoint counsel to provide assistance. Barristers provide detailed advice on specific questions of law and are often asked to provide opinion on the relative strengths and weaknesses of the opposing cases. They also act as advocates; that is, they will present the case on your behalf, either in writing or orally at a hearing in front of the court or tribunal. In adjudication a barrister is likely to be appointed in order to:
Witnesses of fact will play a similar role in adjudication to the one described in mediation.
Expert witnesses are used in adjudication less frequently than in other forms of dispute resolution. This is because the adjudicator is more likely to be a construction professional than a lawyer and is able to bring his or her own technical expertise to bear on the matters in dispute.
The processes of expert evaluation and expert determination are described in Chapters 3 and 4, respectively. Because they are relatively informal and will be tailored by the expert to the circumstances of the case, both processes are suited to going solo – but see the note of caution under ‘Call a professional’, below.
Because any matter that is suitable for resolution in this way is likely to be centred on technical issues, it is possible that the factual documentation and the statement of case could be prepared and presented to the expert by the parties themselves without legal assistance. There are no formal or standard rules for these processes. The expert will determine, on the basis of their experience and in discussion with the parties, the procedures that are most appropriate for the circumstances of the case. Nevertheless, in most instances the preparation needed will be very similar to that required for mediation. In particular, you will need to:
As with mediation, copies of these documents should be provided to the expert when he or she is appointed. They should also be provided to the other party in the dispute at a time agreed between the parties and the expert. It is important that both parties have a clear understanding of the opposing case and of the factual evidence that it is based upon. Without this, it will be difficult to make the effective representations that the expert will depend upon in coming to their decision.
Despite the fact that the process appears to lend itself to going solo, outside help – typically from a solicitor but perhaps from a construction professional with experience of dispute resolution – may be useful in order to:
In particular, this last item is worthy of consideration before deciding not to engage outside assistance. One of the major advantages of expert evaluation or determination is that it can provide a very speedy resolution of relatively straightforward technical or financial issues, which in turn can allow the project to progress effectively and an otherwise constructive business relationship to continue. Having someone who is not involved in the day-to-day running of the project to prepare for and manage the process will minimise the risk of relationships between the parties themselves deteriorating and potentially jeopardising the project or the ongoing relationship.
Although the Arbitration Act sets out a process for arbitration, many of the procedures may be changed by agreement of the parties. Also, a number of arbitral institutions, such as the Chartered Institute of Arbitrators (CIArb), the International Chamber of Commerce (ICC), and the London Court of International Arbitration (LCIA), publish their own rules and manage the course of arbitrations conducted under those rules. This means that from the outset, choices and decisions must be made which may fundamentally affect the process. They may also present an opportunity for an informed party to take advantage of an uninformed party.
For this reason, it is not advisable to undertake arbitration, and in particular international arbitration, without the benefit of advice and assistance from a competent and suitably experienced solicitor.
Litigation, on the other hand, although an equally formal process, is strictly governed by the Civil Procedure Rules (CPR). This means that it is possible to manage the course of a straightforward litigation without legal assistance by understanding and following the rules. This in itself is a major task, however, and not as simple as it might sound. For this reason you would rarely be well advised to undertake litigation without legal assistance. People who undertake litigation themselves are referred to as ‘litigants in person ’.
As a litigant in person, you will need to read and understand various parts of the CPR and their associated PRACTICE DIRECTIONS (a set of directions). There are 74 parts in total and they can be found online.22
Not all will apply to the particular circumstances of your case but the following are likely to be of general application:
For a commentary on the rules and a discussion of the matters that they apply to, the two books that practising lawyers refer to are: Blackstone’s Civil Practice, which is published annually by Oxford University Press, and Civil Procedure: the White Book, which is published annually by Sweet & Maxwell. These cost several hundred pounds each but provide invaluable, accurate and up-to-date information on, and interpretation of, the rules. Your local reference library may well have a copy of either or both. Your nearest university with a law faculty will certainly have copies and may be persuaded to let you use or borrow one. You would be ill-advised to represent yourself without having access to one of these books and becoming as familiar as you can with the relevant sections of the CPR.
If you are thinking about taking on litigation as a litigant in person, you should be aware that the amount of work needed will be considerable. In addition to gaining an understanding of the CPR, you will need to:
The last three of these tasks must be performed in the imposing setting of a formal courtroom, which can be daunting, even for a professional advocate.
Judges tend to recognise the difficulties faced by litigants in person with respect to the procedural aspects of a trial, and will generally tolerate a lower level of document management and written and oral advocacy than that expected from professional advocates, but there is no compulsion on them or on opposing counsel to do so. However, the law and its processes will not bend to accommodate a lack of understanding of the issues, as Court Case 5.1 shows.
If you are considering bringing a claim, you will need a solicitor to manage the process and the development and presentation of your case. If you are facing a claim from another party, such as a client, your PI insurer is likely to want to take over conduct of the matter and will appoint a solicitor on your behalf.
Your contract of insurance will almost certainly require you to notify your insurer as soon as you become aware of the possibility of a claim against you. It is vital that you do this, even if you believe the possibility of a claim is remote or you are confident that you are not at fault. Notification of a potential claim has no adverse effect on your insurance premium or your relationship with your insurer, but failure to notify may invalidate your policy, leaving you uninsured and personally liable for the legal costs associated with any claim against you that arises and for any losses that might eventually be sustained.
You should remember that in any claim against you which is likely to be referred to your PI insurer, it is the insurer’s money that is at risk. The insurer will therefore wish to take what it considers to be the most appropriate steps to protect its position and to avoid or minimise any losses. If a claim does materialise, then the insurer will take over management of the response, thereby relieving you of that burden.
Even if you are not at fault in your own work you may, nevertheless, find yourself facing a claim which may be successful. For example, you may enter into subconsultancy agreements with other design consultants in order to offer the employer a multi-disciplinary service. If the employer has a complaint concerning the work of one of these, then their only course of action will be to sue you as the person with whom they have a contract. If the claim is successful, your insurer will have to pay the claimant, but may be able to recover the money from the appropriate subconsultants by suing them on your behalf. This is because insurance contracts typically involve rights of subrogation which enable an insurer to circumvent the restrictions of privity of contract and ‘step into the shoes’ of the insured in order to sue parties with whom the insured has a contractual relationship.
This is a process that your insurer will want to control from beginning to end in order to ensure the greatest chance of success, so it is important to notify them of any potential claim as early as possible. They are likely to be grateful for the notice rather than critical of your performance.
Although becoming a litigant in person is a possibility, the complexities and stresses of litigation are such that it is far preferable to seek professional legal assistance. In practice, this means appointing a solicitor to take on the conduct of the case through all of its stages. The solicitor will also arrange for counsel and for expert witnesses where these are necessary and will deal with all communications with the court and with the other side.
However, you will be liable for the cost of any legal team that is appointed. Although a winning party can expect to recover the majority, or a significant part, of its costs from the losing side, the initial outlay and the final irrecoverable balance may be beyond the means of many potential litigants. It may be possible to negotiate conditional fee arrangements with both the solicitors and counsel but this will not be possible with respect to expert witnesses who must be, and be seen to be, independent and impartial.