Civil Engineering’s Post

Divergence from the original plans on construction projects is unavoidable. But that doesn’t have to lead to a dispute. Here are 5 steps to keep change orders from becoming disputes. https://lnkd.in/ge4m4zRd #construction #legal

For contractors who aren't in the business of reviewing and negotiating construction contracts, here are the top 12 phrases to look out for: https://lnkd.in/ept554eY .... #constructionindustry #contracts #legal #businessdevelopment

  JCT DISPUTE RESOLUTION – DAMAGE LIMITATION (Part 2 of 4) - Avoidance   Dispute Resolution or in plain simple English – DAMAGE LIMITATION.   Be under no illusion -- YOUR BUSINESS COULD BE AT RISK DIRECTLY OR INDIRECTLY FROM A DISPUTE – IT IS IMPORTANT YOU LIMIT THE DAMAGE AND RESOLVE IT!   All disputes have three different stages:- Avoidance Management Resolution   Today we are going to consider AVOIDANCE.   How do we avoid all disputes?    Let’s not be naive - this is the UK Construction Industry and sub-contractors are operating under JCT & Bespoke Construction Contracts with unfavourable & onerous terms so the honest answer is we can’t avoid all disputes.   However, we can minimise their occurrence, reduce our risk and maximise the chance of a favourable outcome.   Dispute avoidance is simply good common sense business practise.   ·       Most importantly make your systems, procedures standard letters & documents contractually and legally robust enough to reduce or manage the risks. (Check out https://lnkd.in/edagdYDc     ·       You’re the boss - you can’t watch everything. Are you confident your staff know how to protect your business from the risks of construction contracts     ·       Train and educate your employees to understand the contractual consequence and how to make the contract work for you. You carry out regular “toolbox talks”.for site personal to carry out their tasks – why not project & contract personnel?   ·       Carry out contractual audits of your systems, letter, & procedures. You do it regularly for ISO 9001 etc why not for something that may save your business?     ·       Get regular Contract / Legal Health Checks on how you manage your contracts – it will only cost you a few hundred pounds but could save you tens of thousands.       ·       Before signing that contract carry out a risk assessment and review the terms. Do not just sign in the hope of avoiding dispute or dealing with it when it happens. You wouldn’t start work on site without risk assessments why would you start a contract?       ·       Have the confidence and knowledge to re-negotiate the terms of a contract - done professionally and logically you might surprise yourself.     ·       Make sure the contract payment terms don’t overexpose you. If the worst happens and they don’t pay you what is your disaster recovery plan – will you survive?     ·       Don’t put off or delay that difficult conversation – time is not a healer.   You are an expert in your product & the service you provide you are not a Lawyer! Don’t leave it until a dispute escalates before you get Contractual / Legal Help.   For further advice or assistance to ensure your business has robust dispute avoidance measures as second nature to limit the damage when that dispute happens as it surely will contact Fresh JCT on info@freshjct.co.uk   https://lnkd.in/eUhaHzzU

Critical analysis of what is 'Global' Claim Approach in relation to various standard forms of contract. Will a claim which fails to establish link cause and effect, fail?. PT. 1.G.C. Construction contracts should establish an equilibrium between the interests of all stakeholders (Knutson,2005). Nonetheless, it is difficult to attain a completely equitable distribution of risks, comprehending project risks and rationing risks lies at the heart of good contracting.The availability of the horde and varied nature of the various standard forms in the construction industry has created a misconception that the standard form embraces all possibilities. In reality, such forms seldom set down the terms of agreement between the parties properly and fairly distribution risks between the parties a myth. Such forms are normally planned by vested interest groups inherent ly biased in the distribution of responsibility ( Alramahi,2013; Cameron,2012; Thorpe, 2008). The offspring of this circumstances is the complexity of contemporary claims sometimes need to be dealt with by a 'Global' approach. The claims based on global basis has been the subject matter of immense differences. The usual need to establish cause and effect of delay and financial claim ignored. The majority of the contractors and subcontractors have been ignorance the important requirements to establish link cause and effect and retain a comprehensive and systematic project documentation. As Abrahamson (2003), a well renowned expert in construction law famously quoted that: " A party to a dispute, particularly if there is arbitration, will learn three lessons ( often too late): the importance of records, the importance of records, importance of records ..... not forgetting the importance of notices, the importance of notices, the importance of notices ". Record keeping is generally required for the protection of the contractual right and useful for supporting claims against the client (Ahlers, 2007). Will a claim which fails to establish link cause and effect, fail? The answer must be that it depends upon circumstances. It is however, an arduous and nascent law sphere, the topic of considerable court scrutiny. The expression 'Global' claim does not have an agreed coherent definition or interpretation. Therefore, there is an urgent need to provide a defined term for 'Global' claim in order to clear the mud about issues related to its identification and interpretation. A global claim is defined as" know it when you see it", but it is ambiguous. Although it is not difficult to have a common global explanation, providing an error-free definition is much more challenging. Other authors' definitions proposed include: a) Keating on Construction Contracts ( Furst & Ramsey,2012): " A global claim.....provides an inadequate explanation of the causal nexus between the breaches of contract or relevant events or matters relied upon and the alleged loss and damage or delay that relief is claimed for".

Letter of instruction for Experts in Construction Disputes As a Quantity Surveyor involved in a construction dispute who often receives letters of instruction from lawyers, it's crucial to have a thorough discussion regarding the issues at hand prior to providing the letter of instruction to ensure that the expert has the skill set to carry out the instructions. Collaborating with the expert allows each party to gain insights into the nuances of the matter and discern the precise areas requiring examination. Additionally, consulting the expert aids in formulating pertinent questions and identifying potential avenues for further exploration. Throughout the drafting process, it's imperative to maintain the expert's duty to the court at the forefront. This needs to be paramount to ensure the expert's opinion remains objective and impartial. In the letter, it should provide a comprehensive background of the dispute, clearly identifying the parties involved. Assumptions must be meticulously crafted, as they form the basis of the expert's report and influence its admissibility. Additionally, including a detailed list of documents pertinent to the case facilitates the expert's understanding and analysis. Crafting precise and relevant questions is pivotal in eliciting the expert's opinion on the issues in dispute. Care must be taken to avoid loaded, biased, or repetitive inquiries that could compromise the integrity of the report. Furthermore, it's essential to communicate pertinent deadlines and inform the expert of any relevant dates, such as examinations, settlement negotiations, or hearing dates. Finally, instructing the expert to include a requirement to comply with the any Expert Witness Code of Conduct in the relevant jurisdiction. A well prepared letter of instruction serves as the cornerstone for an effective expert report, facilitating a clear understanding of the issues at hand for the expert and aiding the court in making informed decisions.

Interesting read

A construction contract, being one that involves multiple parties, is most likely to lead to disputes. Due to the nature of construction contracts, or better yet the construction process, conflicts and disputes are almost inevitable. This is because, in construction projects, a number of different contracting entities with different needs are expected to cooperate and coordinate their efforts. When a dispute arises in a construction contractual relationship, the parties often spend a great deal of time in negotiations in an attempt to resolve the dispute, rather than resorting to the courts. The reason for this disposition is not farfetched. To put it in better words: A building contract being essentially a contract of reciprocal promises, presents a pattern of integrated actions of both parties, so correlated and timed that delay or default of any one step by any party would put out of gear the entire machinery of construction entailing extra time and expenditure to put it back in proper gear. Sometimes the machinery may even grind to a halt and to put it back into gear again would entail tremendous time and expense. Such a situation leads to mutual recrimination and raises differences and disputes which call for a settlement process, expeditious and amicable, by an independent and impartial authority acceptable to both, well qualified to appreciate the technical points involved, preferably pre-selected by name or designation or to be appointed by a designated authority. A number of factors in the construction industry have been shown to occasion disputes. They are not limited to the following: -Breach of contract -Non-settlement of payment as per time schedule; -Lack of proper communication; -Insufficient specifications, drawings, designs and plans; -Non-provision of safety practices and job site injuries; -Alterations in the works without proper orders and -Improper management and non-coordination between parties. Traditionally, construction disputes and conflicts were handled by litigation. However, the court system has proven to be neither cost effective nor timely in resolving construction issues. Quite often, a spirit of give and take prevails, and the matter is settled amicably. To solve the inevitable disputes that arise in the process of performance of obligations under construction contracts through litigation may take years and will definitely result in the spending of huge amounts of money, not to mention the stress and the feeling of distrust that it will be putting on the contracting parties. Due to the need for an effective, economic and efficient means of dispute resolution in construction contractual relationships, alternative means of dispute resolution are highly utilized. The emphasis on the need for alternative means of dispute resolution is highlighted by the fact that almost all construction contracts contain specific provisions or clauses on alternative dispute resolution. To be continued....

  JCT DISPUTE RESOLUTION – DAMAGE LIMITATION (Part 2 of 4) - Avoidance   Dispute Resolution or in plain simple English – DAMAGE LIMITATION.   Be under no illusion -- YOUR BUSINESS COULD BE AT RISK DIRECTLY OR INDIRECTLY FROM A DISPUTE – IT IS IMPORTANT YOU LIMIT THE DAMAGE AND RESOLVE IT!   All disputes have three different stages:- Avoidance Management Resolution   Today we are going to consider AVOIDANCE.   How do we avoid all disputes?    Let’s not be naive - this is the UK Construction Industry and sub-contractors are operating under JCT & Bespoke Construction Contracts with unfavourable & onerous terms so the honest answer is we can’t avoid all disputes.   However, we can minimise their occurrence, reduce our risk and maximise the chance of a favourable outcome.   Dispute avoidance is simply good common sense business practise.   ·       Most importantly make your systems, procedures standard letters & documents contractually and legally robust enough to reduce or manage the risks. (Check out https://lnkd.in/egeWXVXp     ·       You’re the boss - you can’t watch everything. Are you confident your staff know how to protect your business from the risks of construction contracts     ·       Train and educate your employees to understand the contractual consequence and how to make the contract work for you. You carry out regular “toolbox talks”.for site personal to carry out their tasks – why not project & contract personnel?   ·       Carry out contractual audits of your systems, letter, & procedures. You do it regularly for ISO 9001 etc why not for something that may save your business?     ·       Get regular Contract / Legal Health Checks on how you manage your contracts – it will only cost you a few hundred pounds but could save you tens of thousands.       ·       Before signing that contract carry out a risk assessment and review the terms. Do not just sign in the hope of avoiding dispute or dealing with it when it happens. You wouldn’t start work on site without risk assessments why would you start a contract?       ·       Have the confidence and knowledge to re-negotiate the terms of a contract - done professionally and logically you might surprise yourself.     ·       Make sure the contract payment terms don’t overexpose you. If the worst happens and they don’t pay you what is your disaster recovery plan – will you survive?     ·       Don’t put off or delay that difficult conversation – time is not a healer.   You are an expert in your product & the service you provide you are not a Lawyer! Don’t leave it until a dispute escalates before you get Contractual / Legal Help.   For further advice or assistance to ensure your business has robust dispute avoidance measures as second nature to limit the damage when that dispute happens as it surely will contact Fresh JCT on info@freshjct.co.uk   https://lnkd.in/eTk9NZJG

Excellence in Construction and Engineering Law. Gray's Inn Construction Chambers. New case review on chambers website re payment and construction contracts and adjudication enforcement. The Technology and Construction Court (TCC) enforces an adjudicator’s decision in favour of a dormant company (sub-contractor) despite the inherent risks that any future successful counterclaim from the contractor may not be satisfied by the sub-contractor. Robust representation in adjudication, arbitration and litigation. Barristers’ chambers with a laser focus on Construction and Engineering Law. Success starts with the right advice. Always speak to an expert. Legal experts in Construction and Engineering Law. Contact me directly on LinkedIn or in chambers on: cedwards@graysinnconstructionchambers.co.uk to find out how we can assist you or your organisation with any construction dispute or for a second opinion.  #excellence #constructionlaw #legalexperts #constructionbarristers #payment #cashisking #adjudication #enforcement #constructioncontract #jctcontracts #necontracts #technologyandconstructioncourt #highcourt #TCC #legaladvice #constructionindustry #adjudicationenforcement #representationmatters #constructionbarristers #graysinnconstructionchambers https://lnkd.in/dqGpPzMi