The Summer 2021 Construction Case Update from Gateley Vinden offers valuable insights on the key issues in adjudication, mediation and dispute resolution affecting the industry
Chief executive Peter Vinden examines the long history of parties in dispute refusing to mediate – and the severe consequences that often follow from courts taking a dim view of unreasonable behaviour.
Looking at a recent case to highlight the issues, he cautions that refusing an offer to mediate needs a very good reason indeed – and a belief that you have a strong case is simply not enough on its own.
In addition, Peter explores the issue of pursuing claims in adjudication to resolve disputes when one party is in insolvency, looking back on a paper he authored on the subject back in 2010 and the changes in the legal landscape over the past 11 years.
This includes a key case in Bresco Electrical Services Ltd v Michael J Lonsdale (Electrical) Ltd, which Peter traces from the original dispute all the way to a 2020 Supreme Court ruling and a look at the current position in adjudication law.
Concerns over cost
Finally, Peter discusses the costs involved in referring construction disputes to adjudication as the process has evolved over the 23 years since its introduction under the Housing Grants, Construction & Regeneration Act 1998.
With multiple submissions, jurisdiction challenges and hearings now common, many potential claimants are being deterred from pursuing resolution through adjudication because of concerns over the cost.
However, Peter argues, adjudication still remains the most effective form of alternative dispute resolution and, with a number of construction companies expected to encounter financial difficulties in the next 12 months, action is needed to address this issue.
As a result, Gateley Vinden has made the decision to offer adjudication representation on a “no win, no fee” basis and will, in appropriate circumstances, share financial risk of the process.
Peter outlines how it works and the options available, which are designed to offer a flexible approach to fees and risk participation to help ensure smaller contractors and specialist subcontractors are not restricted from exercising their rights to resolve disputes through the adjudication process.