Posted On / 31.10.2016

Dispute Resolution – An Adrenalin Kick

Have the Courts and other professional bodies finally caught up with clients’ desires for quicker solutions? Will we see a variety of dispute resolution methods to catch up with adjudication?    

The Technology and Construction Court (TCC) is now piloting new, faster, procedures as alternatives to the formal trial process.   The Royal Institute of Chartered Surveyors (RICS) recently launched its own (apparently faster) arbitration procedure.  

TCC  

Over the next 2 years the TCC will be trying out the Shorter Trials Scheme and the Flexible Trial Scheme.   Both aim at shorter timeframes and lower costs potentially more proportionate to the sums in dispute.  

Shorter Trials Scheme  

Aims:  

  • Judgment in less than a year from starting proceedings;  
  • Encourages cases which don’t have extensive documents or witness evidence;  
  • Allows parties to ignore the pre-action protocol for construction and engineering disputes;  
  • Doesn't require costs budgets;  
  • Single judge deals with the management of the case and the parties only disclose the documents they want to rely upon;  
  • Parties can ask for specific documents from their opponents but are encouraged not to do so after the case management conference;  
  • Statements of case limited to 20 pages;  
  • Witness statement evidence limited to 25 pages;  
  • Trials are to be listed within 10 months of starting proceedings;  
  • Trials not to go over 4 days and judgments are to be issued not later than 6 weeks after the end of trial

The advantages of cutting to the quick are obvious and anything that assuages a client’s pocket will be attractive.   However the protocol does encourage early and swift settlement at a time when the parties may not have become so entrenched in their positions. Will a quicker and cheaper court process lead to parties shooting from the hip more often and then getting into proceedings they could find emotionally and still then economically difficult to extract themselves from?  

Flexible Trials Scheme  

This looks to allow parties to breakdown the standard procedures and tailor their conduct to suit the case.  Alterations to normal directions relating to pre-trial disclosure, witness evidence, expert evidence and submissions at trial are all encouraged.   Disclosure and oral evidence can be limited to the minimum necessary for the fair resolution of the dispute and so should be attractive to a wider audience who currently side towards arbitration.  

It does however require the parties to adopt a “it takes two to tango” approach and so where the parties cannot agree on anything it will rarely see the light of day.  

RICS

RICS has developed 2 faster and more flexible alternatives to the arbitration process.  

Disputes under £100,000 there is the fast track arbitration service (FTAS).    

Disputes over £100,000 there is the select arbitration service (SAS).  

FTAS is designed to provide an award within 6 months from the appointment.   The arbitrator’s hourly rate and total hours spent on the matter to be capped.  

SAS offers estimating of arbitrator’s fees and providing parties with updates of any change to estimates.    

As arbitration is a binding and final process (subject to appeal) then potentially only a brief view of the matter being taken as an estimate is too low is not attractive.  

The Construction Industry Model Arbitration Rules have been the default arbitration rules for the JCT suite of contracts for some time. Many are familiar with dealing with them, although it will be interesting to see if parties stick with the devil they know or become the new breed of “who dares wins”!  

Having said this will any of these new processes really challenge adjudication as the fastest dispute resolution process around.   Rough justice it may be but a 28 day process with its interim binding nature makes adjudication very attractive even if it lacks costs recovery and sometimes result in high adjudicator's fees.

For more information or to discuss a particular issue you may have please contact either Phil Burbidge on 01935 846122 or philip.burbidge@battens.co.uk or Iain Cole on 01935 846456 or iain.cole@battens.co.uk

Visit our Construction page by clicking here