Construction Dispute Advice and Resolution

Specialist Construction Law solicitors providing pragmatic and strategic construction dispute resolution advice to operators in the construction industry.

Holmes & Hills’ Construction Team acts for sub-contractors, professionals providing services within the construction industry, main contractors and employers in successfully resolving disputes relating to construction contracts and projects.

Expert representation in construction disputes

The specialist construction solicitors at Holmes & Hills are experienced in resolving construction disputes through traditional litigation and all methods of alternative dispute resolution (ADR). The construction Team is regularly advising clients operating in the construction sector on disputes concerning:

  • Extension of time
  • Loss and expense
  • Delay and disruption
  • Defective works and defect liability periods
  • Professional negligence
  • Suspension and termination
  • Practical completion
  • Interim payment
  • Final accounts
  • Variations to contracts
  • Changes to scope of works

Litigation and making formal court claims in construction disputes

Litigation is the name given to formal Court proceedings.  It is a detailed process which starts with a “pre-action” period, during which the parties are required to set out their positions, followed by the claimant issuing a claim form in the appropriate Court (that is, delivering it to the Court and paying the relevant fee).  Assuming the defendant files a defence, the Court will give the parties directions as to what steps they must take, and when, in order to prepare their case for a final hearing.

There are extensive rules that govern the conduct of litigation (including various pre-action protocols), often with sanctions that apply, or may be applied, in the event of non-compliance. 

Holmes & Hills’ Construction Team advise clients on the appropriateness of formal litigation compared with the potential benefits of ADR procedures and have a wealth of experience preparing cases for trial and in achieving successful conclusions via the Courts, both in respect of making and defending claims in the County Court, High Court, Technology and Construction Court and Court of Appeal.  

Utilising alternative dispute resolution procedures in construction disputes

Holmes & Hills Solicitors has a wealth of experience advising and representing clients in ADR processes. ADR processes offer a range of benefits but that which is most appropriate will depend on the exact circumstances of a dispute and a client’s appetite for risk. As part of Holmes & Hills’ services, your specialist Construction Law solicitor will discuss the various alternatives with you, along with their potential benefits. Broadly speaking, seeking to resolve a dispute through ADR can provide the following benefits:

  • Lower professional (legal) costs. The traditional route of litigation, involving formal court claims, procedure and hearings can be extremely costly. ADR procedures can provide material savings in respect of professional fees.
  • Speed of resolution. Pursing a claim through the courts can take a considerable amount of time. ADR procedures can provide a fast and successful conclusion.
  • Flexibility and control. Mediation provides parties in dispute with a more flexible approach to reaching a settlement, one that grants the parties greater control.
  • Confidentiality. Avoiding litigation and formal court procedure means avoiding names of parties and details of disputes being made public.   

Adjudication

Adjudication provides parties to a construction contract with a process that provides for quicker resolution of a dispute arising out of the construction contract. The right to refer a construction dispute to adjudication is granted to parties by the Housing Grants, Construction and Regeneration Act 1996.

Adjudication sets out certain minimum procedural requirements which enable either party to a dispute to refer the matter to an independent party (the adjudicator) who is then required to make a decision within 28 days of the matter being referred (subject to any agreement to extend that timetable).

Adjudication Timeline

Adjudication disputes

Holmes & Hills has advised and represented a large number of clients operating in the construction industry in successfully making and defending adjudication claims. This includes claims such as:

  • Payment of interim and final accounts
  • Extensions of time & loss and expense
  • Defects
  • Claims for unpaid retention
  • Termination

Getting early advice on adjudication is essential

Adjudication is designed to be a quick process. If you are facing a dispute, are considering making an adjudication claim or believe you may, or have already received a notice of adjudication, it is essential that you obtain expert legal advice from a specialist construction solicitor.

The Construction Team at Holmes & Hills has significant experience making and defending Adjudication claims, adhering to the strict timescales imposed by the statutory adjudication process.

Enforcing adjudication decisions

Adjudication does not necessarily achieve final settlement of a dispute, because either party has the right to have the same dispute heard afresh in court. Nevertheless, experience shows that the majority of adjudication decisions are accepted by the parties as the final result.

Where required, Holmes & Hills is experienced in advising and representing clients in enforcing and defending adjudication decisions in the Technology and Construction Court.

Mediation

Mediation is a voluntary process, whereby parties who are in dispute attempt to negotiate a compromise with the assistance of an independent third party (the mediator).  The mediator’s role is to help the parties resolve their dispute, not to impose his/her decision on them.

Because mediation is a voluntary process, the parties have complete discretion as to how a mediation should be conducted and where and when it should take place. 

Mediation can often be a quick and cost-effective alternative to more formal dispute resolution proceedings and allows for greater flexibility (the parties can, for example, agree terms which are beyond the scope of anything that could be ordered by the Courts).  It can also have the benefit of keeping the dispute out of the public domain.

Expert advice in advance of and at mediation

Holmes & Hills Construction Team regularly advises clients in relation to mediation. In the first instance, it will be necessary for a client to receive advice as to the appropriateness of mediation given the nature and circumstances of the claim which is being made or defended.

If mediation is the appropriate ADR process to pursue, the Construction Law specialists and advocates at Holmes & Hills advise clients and prepare for the mediation. Our construction specialists will also be in attendance at the mediation to ensure clients have the benefit of expert advice throughout the negotiations.

Arbitration

It is not uncommon to find that construction contracts contain a clause providing for disputes to be resolved by arbitration rather than litigation.

Where the seat of the arbitration is in England and Wales, our Construction Team are able to advise clients in relation to all aspects of an actual or proposed arbitration agreement and will represent clients and assist them in resolving their disputes by way of such arbitration.  If necessary, we will also assist clients with enforcing or challenging the arbitration award in the Courts. 

Expert determination

Expert determination is a form of alternative dispute resolution whereby the parties to a contract ask an independent expert to give a binding decision on a dispute. Expert determination can provide you with a quicker and effective means of settling a dispute.

Expert determination tends to relate to technical issues rather than points of law and allows parties to avoid the long process of court when a single issue can be decided by an appropriate expert in the relevant field.

This form of ADR must be carefully considered against other forms, particularly where it is being proposed by the other side. The Construction Team at Holmes & Hills Solicitors is experienced in providing strategic legal advice to clients where expert determination is being proposed or considered and has proven experience successfully utilising this method of ADR in both making and defending claims.

Insolvency proceedings in the construction industry

Insolvency proceedings come in many forms, however the most common are statutory demands and winding-up petitions.

A statutory demand is a formal written demand for payment of a debt within 21 days. If the debtor does not pay within the 21 days or fails to apply to restrain the creditor from presenting a winding-up petition, the creditor can use the statutory demand as grounds to present a winding-up petition to the Court.

By the time a winding-up petition has been issued the damage is already done. A contractor may struggle to get credit for supplies and credit referencing agents will be alerted to the high-risk nature of the company. This will make carrying out their day to day business and dealing with both customers and suppliers, more difficult.

If you are a contractor who is owed money by another company then a statutory demand/winding-up petition can be a useful tool if a debtor is unable to pay its debts as they fall due. However, a winding-up petition issued on a genuinely disputed debt can be a highly costly mistake to undo. It is therefore critical that specialist legal advice is sought as to the appropriateness of issuing a statutory demand. It may be better to employ a different tactic in seeking payment and the specialist team of Construction Law solicitors at Holmes & Hills can discuss the merits of the options available to you, given the circumstances.

Responding to a statutory demand or winding up petition

If you are on the receiving end of a statutory demand or worse, a winding-up petition, it is critical that you seek expert legal advice urgently. Unless swift action is taken, there is the serious and very real risk of the Court finding that your company is insolvent. We encourage you to contact Holmes & Hills Solicitors immediately on receipt of either of these documents so that you can be advised accordingly.

Expert Construction Law Advice

Call 01206 593933 and get advice from a specialist Construction Law solicitor. 
Or send an email
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