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Construction Adjudication Or Litigation

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litigation v Adjudication - what is preferable?

Adjudication or Litigation for construction Disputes.

 

Matthew Dillon of MJD Solicitors has participated in Construction Adjudication since the early days of Adjudication.

 

In the year 2000, Matthew Dillon worked as an in-house construction-law solicitor at Jarvis plc. He considered himself lucky to be involved with Construction Adjudication from its early stages.

 

The purpose of this blog is to consider what is best as of today – should you resolve your construction dispute through Construction Adjudication or litigation? Matthew Dillon of MJD Solicitors, Essex gives his opinion below.

 

Why write on How to resolve Construction Disputes? Construction Adjudication or Litigation?

 I am  dealing with a small construction dispute.

The same old issue has arisen. My client, a small main contractor, has been denied payment through the service of a somewhat meritless Payless Notice.

Should I advise my client to resolve Construction Disputes through Construction Adjudication or Litigation?

The delays in the County Court – 78 weeks

I am daydreaming  when “out of the blue” an article flashes up on my phone “litigants now waiting 78 weeks for their day in the county court. Multi-or fast track claims now take an average of 18 months to come to trial, as delays continue to worsen in the civil courts”. 

The 78 week is an average. It does not include the 1 – 3 months of pre-action protocol engagement under the pre-action protocol for construction and engineering disputes. A reluctant debtor may be able to cause the delays to be much greater than 78 weeks. Cases may settle early.

To be clear we are not talking about delays in the High Court where cases may often not get to court much before 15 months from issue of a Claim Form. The values and complexity of the disputes often justify such delays in the High Court.

What this newsflash is talking about is delays in cases valued at between £10,000 and £200,000 which would typically be heard in the County Court.

I am not surprised about these delays. Any litigation solicitor can tell of delays. I have seen trials cancelled on a few days’ notice because there is no judge to hear the case. Who do you think pays for that? I have seen a trial cancelled twice. 78 weeks for a trial is optimistic in some cases.

The benefit of Construction Adjudication

What is Adjudication. Many a party to construction do not understand the importance of adjudication to resolving disputes.

Contractors’ are familiar with litigation or arbitration but are not aware of the ability to appoint an adjudicator and the process of resolving disputes within the construction industry.

I am a keen advocate of Adjudication. I have been involved in the adjudication process for most of my post qualification career.

For a explanation on Adjudication, read my guide on Construction Adjudication (first published in 2015).

MJD Solicitors endeavor to undertake Adjudication at a price that is cheaper than the fixed price quotes offered by full-service law firms. We cap costs, meaning that often the work is undertaken at a lower cost to the client.

What we like about Construction Adjudication is its speed.

It is possible to get a result in 6 weeks. Contractors can recover payment in 6 weeks as opposed to 78 weeks. Because the Adjudicator is a construction specialist, the decision is likely to be the correct one.

The benefits of Litigation

The main benefit of litigating in the County Court is the potential ability to recover legal costs.

The existence of these costs may cause a Claimant to settle a claim early. However, this benefit to some extent is being eroded by the very complex fixed cost regime that will shortly be introduced.

The benefit of litigation is also eroded by the fact that a reluctant debtor may very well spin matters out for as long as possible knowing that it has 78 weeks to meet its liabilities.

When cashflow is the lifeblood of the construction industry, waiting 78 weeks for payment is not very attractive. 

Also, the benefits of litigation are eroded by the potential of a junior judge who has no experience of construction law disputes.

 

 Conclusion

The purpose of this note was to consider How to resolve Construction Disputes? Adjudication or Litigation?

At the present time, we do suggest to the vast majority of our clients that their interest would be better served in Adjudication. The delays in the court system that currently exist are unacceptable, but real. These delays are not going to disappear any time soon.

Adjudication is fast and many say rough justice. For a party that loses, it can be expensive.

In our experience Adjudications rarely settle early. Once commenced it is necessary to see the matter through to the end. That is why it is critical to ensure your case has the best chances of success before commencing a Construction Adjudication.

Most Adjudications are complied with. Where they are not it is necessary to commence Adjudication Enforcement proceedings in the High Court. This can take further 8 weeks.

MJD Solicitors are experienced in Adjudication Enforcement. When commencing an Adjudication, it is necessary to ensure it is likely to be enforceable.

MJD Solicitors are experienced in handling Construction Adjudication cases to help their clients succeed. They understand the complexities of the construction industry and the importance of resolving disputes in a timely and cost-effective manner.

If you are facing a construction dispute and are unsure whether Adjudication or Litigation is the best course of action, it is important to seek expert legal advice.

Matthew Dillon offers a free initial consultation to discuss your case and provide guidance on the most appropriate way forward.

Don’t let a construction dispute derail your project or business. Contact MJD Solicitors today to ensure that your case is handled with the expertise and care it deserves.

To discuss the issue of How to resolve Construction Disputes; Adjudication or Litigation? contact Matthew Dillon of MJD Solicitors, Brentwood, Essex on 01277 280761 for an initial free no-obligation consultation.

Matthew Dillon LLB, Solicitor, MCIArb

MJD Solicitors

8 September 2023

This article is for information purposes, does not constitute legal advice and should not be relied upon. For terms and conditions of this article please read here

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