Draft building & construction contracts, dispute resolution & litigation...

Building disputes: Experienced construction lawyers advising clients on draft contracts, alternative dispute resolution and litigation

Solicitors here advise on and conduct claims in relation to building and construction work. Our solicitors also draft building contract documentation.

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Our Building and Construction Disputes Unit has substantial experience in advising on and conducting claims arising out of building and construction work.  We advise and represent in legal proceedings UK and international clients in building and construction disputes throughout England and Wales. We act for companies, firms and developers of all sizes, including: commercial builders; residential builders; main contractors; sub-contractors; employers; developers; architects; and surveyors.     “Repudiation in the context of this case is taken to describe the circumstances where “one party so acts or expresses himself as to show that he does not mean to accept the obligations of a contract any further” – see Heyman v Darwins [1942] AC 356 at 361 per Lord Simon. In normal circumstances a breach of contract by one party does not entitle the other party to bring the contract to an end. There are two exceptions to this rule:   (1) where the contracting parties have agreed whether by express words or by implication of law that any (or a particular) breach of contract shall bring the contract to an end;   (2) where the event resulting from the breach of contract has the effect of depriving  the other party of substantially the whole benefit which it was the intention of the parties that it should obtain from the contract, i.e. where there is a fundamental breach – see Lord Diplock in Photo Products v Securicor [1980] AC 827 at 849. In the second case the court must consider the commercial significance of the breach or breaches of contract. To amount to a fundamental breach it must go to the root of the contract - see Federal Commerce v Molena Alpha [1997] AC 757 at 779. Repudiation requires acceptance if it is to bring the contract to an end. Failure to continue to perform may be sufficient notice that the innocent party has elected to treat the contract as at an end. See Lord Steyn in Vitol SA v Norelf Ltd [1996] AC 800 at 810/811. In general, mere negligent omissions or bad workmanship, where the work is  substantially completed, does not go to the root of the contract and is not therefore repudiation - see Hoenig v Isaacs [1952] 2 All ER 176.    However, an accumulation of breaches may indicate an inability on the part of a contractor to deliver the contract to a reasonable standard. In Sutcliffe v Chippendale & Edmonson [1971] 18 BLR 157 at 161 the court held that:    “the contractors’ manifest inability to comply with the completion date requirements, the nature and number of complaints from sub-contractors and [the architect’s] own admission that in May and June the quality of work was deteriorating and the number of defects was multiplying, many of which he had tried unsuccessfully to have put right, all point to the truth of the complainant’s expressed view that the contractors had neither the ability, competence or the will by this time to complete the work in the manner required by the contract”. Where time is not of the essence, delay on the part of the contractor does not amount to a repudiation unless it is shown that he cannot complete the contract within a reasonable time or that the delay is such as to deprive the innocent party of substantially the whole benefit of the contract.   In Felton v Wharrie (1906) HBC, Vol 2, 398, the contractor had not finished the work by the completion date and when asked how long it would take he said he could not say. The contractor continued to work on site and two weeks later he was forcibly ejected. The Court of Appeal held that the employer had no right to determine the contract.   “If he were going to act upon the claimant’s conduct as being evidence of his not going on, he ought to have told him of it and to have said, ‘I treat that as a refusal’, and the man would know of it but the fact of allowing him to go on cannot be any evidence of justification of re-entry.” “As far as the employer is concerned, if the employer wrongfully and by his own act and without lawful excuse renders completion of the contract impossible, that amounts to a repudiation. This must apply to the situation where the employer ejects the contractor from site before completion.” Hayes & Others –v- Gallant [2008]

Tim Clayton  clayton@humphreys.co.uk

We understand that, irrespective of the amount of money involved, building disputes can rapidly become management-time-consuming and expensive.

Accordingly, we aim to equip our clients, whether claiming, defending and/or counter-claiming, with a tailored professional analysis of their actual legal position at an early stage, often by way of an affordable fixed-charge package.

Frequent issues Issues our clients raise and on which we advise include: Remedial works are required. The work has not been completed on time. I have been overcharged for the work undertaken. What happens if there wasn't a written contract. I would like to get my money back.

Dispute resolution It is our experience that many building disputes can be resolved without recourse to the legal process.  In view of this we seek to open lines of communication between the parties at an early stage and to explore the possibility of attempting to resolve the dispute by way of alternative dispute resolution including:  round-table meetings between the parties; mediation; arbitration; adjudication preparation and exchange of experts  reports; meetings of experts.   We find that alternative dispute resolution often proves a cost-effective and efficient means of resolving disputes without the need to commence court proceedings.  If early dispute-resolution does not prove possible our lawyers know how to be effective, tenacious litigators.  We have wide experience of representing clients in arbitrations and in litigation in the County Courts, High Court, Technology and Construction Court and Mercantile Court.

Tim Clayton  clayton@humphreys.co.uk

Be prepared  None of us conducts our affairs with litigation in mind, but when a dispute arises, keeping these practical steps in mind may be of assistance:

Put it in writing -  even if there has been little or no written correspondence between you and the builder beforehand, you should put your grievances in writing and give the builder a chance to respond. This may assist in showing that your actions were reasonable if the matter ever comes before a court.

Make contemporaneous notes -  or those things that cannot be recorded in writing this may be the best alternative. For example if you consider that the builder is behaving in an unreasonable manner or that aspects of the work/working practices are unsatisfactory, record what/where/when/who while your recollection is fresh.

Keep receipts and invoices -  this may sound obvious but if the dispute is in relation to amounts claimed or the cost of remedial work, accurate details of the amounts involved will be essential. Similarly, if further work is required obtain a fully itemised quotation/estimate in relation to the work.

Take photographs -  this may be of assistance in showing defective work or the stage the work has reached. It may be particularly important to show the position the work has reached if subsequent work/alteration are likely to take place. Ultimately, however, it is likely that if the dispute progresses expert evidence will be required and contemporaneous photographs may be of assistance to experts.

Try to be calm and collected -  this may go some way to taking the "heat" out of the dispute and avoiding the breakdown of your working relationship.

Core services to business We provide contentious and non-contentious services to a variety of clients in the construction industry including: Residential building disputes Commercial building disputes Litigation Mediation Arbitration Advice on forms of building contract Adjudication Alleged defective works Terms & conditions for commercial and residential builders Commercial debt collection

Commercial debt recovery We find that our clients in the construction industry are better served by specialist solicitors with the requisite knowledge and experience than by debt collection companies. Unlike debt collection companies, we are able to provide an accurate legal analysis of your position and to take rapid firm action, backed by a credible threat of litigation and/or petitioning for bankruptcy/winding up. Our debt recovery unit offers competitive risk-adjusted funding options. *Note that proceeding by way of letter of demand and/or statutory demand will only be appropriate in cases where the debt is not disputed by the debtor.

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