Construction projects are huge undertakings with many moving parts, so disagreements are common. When these disputes occur, they can lead to what’s known as construction litigation. This is a legal process specifically designed to resolve conflicts within the construction industry.
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In this blog, our civil litigation lawyers will explore the essential aspects of construction litigation in the UK, including common disputes, the litigation process, and the mechanisms available to resolve conflicts without resorting to traditional legal proceedings.
What Is Construction Litigation?
Construction litigation is a branch of law that deals with legal disputes related to construction projects. It involves the enforcement and defence of contractual rights and obligations when a party involved in a construction project claim a breach. It can affect various parties, including contractors, subcontractors, legal directors, architects, engineers, construction companies, suppliers, or property owners.
Contract disputes in construction can range from straightforward issues like non-payment, unsatisfactory work conditions, or missed deadlines to more complex arguments over the quality or scope of work done.
When parties cannot resolve these disputes internally or through negotiation, litigation can become necessary. This process includes filing a lawsuit, conducting discovery to investigate the allegations, and either proceeding to trial or reaching a settlement.
A construction lawyer or attorney specialising in construction law guides clients through the litigation process. They possess in-depth knowledge of the construction industry and are proficient at handling cases involving construction and engineering disputes, contract law, commercial law, etc.
Types of Construction Disputes
Construction disputes, like the projects, are varied, and each comes with its own set of challenges and legal considerations. Here are some of the common types of construction disputes:
Construction Defects/Quality Issues
Construction defects are failures in the design, workmanship, or materials used in a building project that leads to a part of the structure being unsafe or unable to perform its intended function. These defects might not become apparent immediately and can have severe impacts in future, such as structural failures or water intrusion.
Legally, construction defect claims must establish that the defect was due to an occurrence and resulted in property damage due to a contractor’s poor work or management and was not excluded by business risk exclusions.
Construction delays can occur from various sources, including but not limited to poor project management, unforeseen site conditions, financial issues, weather conditions, or changes in work scope. These delays can affect project delivery, leading to disputes over whether the delay justifies an extension of time or additional compensation.
Payment disputes occur when contractors or subcontractors are not paid for their services, materials, or labour. This can be due to misunderstandings or disagreements over contract terms, failure to pay on time, or disputes about the quality of work provided.
These issues can result in mechanic’s lien claims, where a contractor or supplier places a hold on the property until they get their payment. Payment disputes can have wide-reaching consequences, including damage to professional reputations.
Construction sites can be dangerous, and workplace injuries are a deep concern. When injuries occur, disputes may arise over liability and compensation. These disputes involve understanding who is at fault and the severity of the injuries sustained. In such cases, legal claims can be made for workers’ compensation, negligence, and safety standards violations, among other things.
Breach of Contract
Breach of contract is a broad category that includes any failure to fulfil the contract terms related to a construction project. This could involve not completing work on time, not paying for services rendered, or failing to meet the agreed-upon specifications of the project. Breach of contract claims can be complex, involving multiple parties and layers of subcontracting.
The Pre-Action Protocol
Before engaging in the formal stages of construction litigation, parties must navigate the Pre-Action Protocol for Construction and Engineering Disputes. This protocol is a preliminary step aimed at clarifying each party’s position and promoting resolution without court intervention.
The procedure involves the exchange of a detailed letter of claim, acknowledgement by the defendant, and subsequent responses. These initial communications, coupled with a pre-action meeting, often pave the way for mediation or other forms of dispute resolution.
It starts with the claimant issuing a letter of claim to the defendant. Within 14 days, the defendant is expected to acknowledge this letter. They then have 28 days to deliver a detailed letter of response. If a counterclaim arises, the claimant gets 49 days to respond.
Steps in the Construction Litigation Process
The litigation process begins with a thorough case investigation, where the litigation lawyer gathers evidence, takes witness statements, and analyses the chain of events leading up to the dispute.
The next step involves drafting and serving the pleadings, including the summons and complaint, which officially initiate the lawsuit. Upon receiving these documents, the defendant should enlist an experienced attorney to investigate the claims and respond effectively.
The subsequent phase is the discovery phase, where both parties exchange relevant information such as contracts, paperwork, blueprints, and other material evidence. This stage is facilitated by requests for production, requests for admission, and depositions and may involve motions to compel or for protective orders if necessary.
If the facts are overwhelmingly in one party’s favour, a motion for summary judgment may be filed to resolve the case without a trial. If the case proceeds, pre-trial comes next. Preparations for this step involve consulting with witnesses and formulating strategies based on the accumulated evidence for courtroom presentation.
At trial, attorneys from both sides present their arguments, evidence, and witness testimonies to illustrate the merits of their case. If the trial concludes with a verdict, the losing party has the option to appeal, potentially revisiting the trial phase with a focus on identified legal issues and additional evidence.
Alternative Dispute Resolution in Construction Disputes
In the construction industry, efficient dispute resolution is crucial to maintaining project timelines and relationships. Alternative dispute resolution (ADR) methods, such as mediation, adjudication, and arbitration, offer parties ways to settle disagreements without engaging in lengthy litigation.
Mediation involves a neutral third-party mediator facilitating discussions between disputing parties to help them reach a voluntary agreement. It is often less formal and more flexible, allowing for creative solutions tailored to the specific needs of the parties involved.
Adjudication is a relatively quick process where an adjudicator makes a decision based on the presented evidence and arguments. This decision is binding unless later challenged in arbitration or litigation. It’s particularly useful for resolving disputes during the life of a construction project, as provided for under the Construction and Regeneration Act 1996.
Arbitration is a more standard approach similar to court proceedings, where an arbitrator or a panel decides after considering the proof and arguments from both sides. While arbitration is binding and offers a structured resolution process, it is private, and the arbitrators often have substantial industry expertise.
Each ADR method has its advantages, such as time and cost savings, confidentiality, and preserving business relationships. The choice will vary based on factors like the nature of the dispute, the parties’ willingness to cooperate, and the desired balance between formality and flexibility.
Let Gulbenkian Andonian Solicitors Help You With Construction Litigation
Dealing with the complexities of construction litigation requires expertise and a strategic approach. At Gulbenkian Andonian Solicitors, our civil litigation team specialise in offering comprehensive legal support in construction disputes.
Whether you are facing contract issues, payment disputes, or need guidance through the ADR process, our team is equipped to provide the legal assistance you need.
Contact us for a consultation to ensure your construction project stays on track and your legal rights are protected. Let us help you find the most effective resolution to your construction litigation challenges.
It is wise to consult with an experienced construction litigation attorney and examine your contract in order to determine the most appropriate course of action and legal remedies.
The assistance of the construction lawyer is invaluable throughout the construction litigation process. In addition to representing clients in court and negotiating settlements, they can also assist in understanding complex construction contracts and regulations.
The duration may fluctuate significantly depending on the complexity of the dispute, the willingness of the parties to negotiate, and the efficiency of the court system. While some cases may be settled within months, others may require years.
The phases of construction litigation typically include pre-trial preparation, the trial itself, and potential post-trial actions such as appeals or enforcement of judgments.
An effective construction litigation attorney should have expertise in construction law, experience in representing construction professionals, and the ability to prepare for trial and non-contentious work.
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Dr Bernard Andonian – the Co-Founder of Gulbenkian Andonian Solicitors, is an experienced Immigration Solicitor, former Judge, and recipient of a PhD in Law from the University of West London. He has over four decades of experience practising UK Immigration, Human Rights and Civil Litigation Law. He has served on the Law Society Immigration Law Panel, achieved numerous groundbreaking decisions in higher courts and is featured in the Legal 500’s Hall of Fame.