How The Construction Dispute Landscape Has Changed

According to a recent report by Arcadis entitled "Does the construction industry learn from its mistakes?"the average value of disputes in the UK construction industry has transformed from being the lowest globally, to one of the highest. While the principal causes of construction disputes may not have changed greatly, the landscape in which they are unfolding certainly has. With construction disputes continuing to grow in size and complexity we speak to Victoria Russell, a consultant at Fenwick Elliott LLP, to find out more. Victoria's wealth of experience as a construction law specialist, including her recent award of The Society of Construction Law's President Medal 2018 for her outstanding contribution to construction law, means she is perfectly placed to tell us about some of the developments she has experienced.

Could you please give me an overview of the changes you have seen throughout your career?

When I was close to qualifying as a solicitor in 1981, I answered a job ad in The Times which said "Great future for a good fighter". It didn't mention construction. I thought it sounded interesting so applied, and got the job. All my friends thought I was mad. I was the first female lawyer my then firm had hired. Four years later, when I became a partner, I was horrified to discover that they had drawn up a list of all the clients they thought would object to having a woman as their solicitor. Fortunately for me, none of them had done so. I really hope that wouldn't happen now.

There have been many changes to construction dispute resolution in the intervening 37 years. When I started my career, the construction judges were called Official Referees. Case management was occasional and haphazard and trials were double- or triple-booked, causing enormous delay and uncertainty plus huge expense. Litigation was a battlefield, with few if any emerging victorious.

Back then, the standard forms of contract were largely JCT, usually with an arbitration agreement, so the majority of disputes were resolved by arbitration. Arbitration, however, became the mirror image of litigation, with lengthy and expensive hearings. Lawyers were unfortunately to blame.

Which changes do you feel stand out as improving the handling of construction disputes?

It became clear that dispute resolution needed a major shake-up. After the Arbitration Act 1996, the developments which have been most significant, and had the most impact, include the Woolf reforms leading to...