Resolving UK Construction Disputes

Our construction disputes briefing highlights litigation, arbitration and ADR developments and is aimed at in-house lawyers in the construction industry.

Dispute resolution news round-up: construction focus

Litigation

Lord Justice Briggs has issued an interim report on his urgent review of the structure of the courts and has asked for written comments by the end of February. (Click here to see the press release.) The judge's terms of reference include: the delegation of routine judicial functions to "delegated judicial officers"; the creation of an online court which [should] reduce the workload of the County Court and might make a merger of the County and High Courts a possibility; and how to deal with the Court of Appeal's onerous workload. Lord Justice Jackson has recommended the introduction of fixed costs in civil claims valued below £250,000 (seehis notes from the Insolvency Practitioners Association Annual Lecture, 28 January 2016). He has proposed establishing four bands (£25,000 to £50,000, £50,001 to £100,000, £100,001 to £175,000 and £175,001 to £250,000) to which fixed costs would apply for specific work stages, for example, pre action, disclosure etc. (See page 13 of the lecture notes.) He has also recommended rules that would allow an uplift on these fixed costs in certain circumstances - such as the work being done in London. A government consultation on the proposals is likely to be the next step. Costs budgeting by default: a High Court decision in Sharp (and others) v. Blank and others [2015] EWHC 2685 (Ch) has indicated that the costs management process will apply by default to cases where the sum claimed in the claim form is less than £10 million or there is no statement in the claim form that the sum claimed is £10 million or more. Parties in large claims over £10 million who do not want costs budgeting to apply by default should therefore state specifically the value of the claim on their claim form. A new electronic working pilot scheme under Practice Direction 51O came into force on 16 November 2015 and will operate for one year in the Technology and Construction Court (TCC), the Chancery Division, the Commercial Court, the Mercantile Court and the Admiralty Court in the Rolls Building, London. The scheme, which uses the HMCTS Courts Electronic Filing (CE-File) software, replaces the pilot that ran in the TCC under Practice Direction 51J until 15 November 2015. It enables parties to issue claims and file documents electronically as well as pay court fees online. As part of the debate on the draft Investigatory Powers Bill 2015, the Law Society and the Bar Council have jointly called for legal professional privilege to be statutorily protected, stating that "it is the mark of a democratic society that citizens can consult a legal adviser in absolute confidence that the information they exchange will not be disclosed without the client's authority". A summary of the issues can be found in The Law Society's press release (which contains a link to the joint Bar Council/Law Society position paper "Investigatory Powers and Legal Professional Privilege"). Alternative dispute resolution (ADR)

Adjudication: the Technology and Construction Solicitors' Association (TeCSA) has published a useful flyer which summarises the benefits of the TeCSA Adjudication Service. Click here to read more or visit www.tecsa.org.uk. Mediation consultation: the European Commission has conducted a public consultation on the application of Directive 2008/52/EC (the Mediation Directive) on certain aspects of mediation in civil and commercial matters. More information on the consultation, which closed on 11 December 2015, can be found here. Survey into the impact of ADR on business: the Department for Business, Innovation and Skills (BIS) has commissioned an independent research project into the system for resolving consumer disputes. BIS want to evaluate the impact of the court system and ADR on consumer welfare and business practices. If you have used ADR in the last 12 months and are willing to take part in a 10-minute confidential phone interview, you can complete the form at:https://www.snapsurveys.com/wh/s.asp?k=144792812432 Source: CEDR: BIS study on ADR and the Court system. Arbitration

Revised CIArb Guidelines: the Chartered Institute of Arbitrators (CIArb) has resolved to review its 18 Guidelines published in 2011, which set out best practice on how to deal with procedural issues in arbitration. The first three guides to be republished dealt with jurisdictional challenges, applications for interim measures applications and applications for security for costs. The CIArb in association with the Adjudication Society has also published revised guidance on the jurisdiction of the UK adjudicator. Effective from 1 January 2016, the amendments are reasonably minor but do include at paragraph 2.1 clarification that "the adjudicator's review of his or her...