Building dispute claims
Assistant solicitor, Joanna Nutchey, talks about building disputes.
It is very difficult to assess a dispute at the start and say with certainty what is going to happen. Every case is different. It is always important to remember at the start that the reason a client comes to see me is because the client cannot agree with the other party. Therefore whilst my client may have a very clear opinion of what their case is, this can differ substantially from the other party’s opinion and ultimately it might be that a Judge at Trial is the only person who is able to end the dispute.
Once solicitors are engaged and the claim has been issued and a defence filed there is no way of backing out of the process until the parties agree settlement, the judge decides the case or one party decides to drop their claim and pay the other party’s costs to the date they drop their claim.
In order to advise clients on the likely outcome of a matter and explore whether any of the options above should be considered, there are some key stages which are similar in all disputes, namely disclosure, exchange of witness evidence and the obtaining of an expert report.
Disclosure is the process by which each party has to provide the other with all the documentation it has in relation to their matter. They have to disclose all the documentation whether this supports their case or undermines it.
Next will come exchange of witness evidence. It is very frustrating sometimes that we will be some months into the court process before this stage takes place and it is only really at this point that the matter becomes clear and we really begin to understand what the other party’s case actually is. Unfortunately I can’t always understand how complex a case might be at the start and so I am also left slightly in the dark until this stage.
The final stage is the expert evidence. Whilst I know how to litigate and I have experience in dealing with building disputes I cannot hold myself out as an expert in building and neither can a Judge. Therefore it is essential that an expert (normally a building and quantity surveyor) is instructed to guide the legal professional through what is expected in terms of the actual building process and finished article. The Court will rely heavily on the expert report to assess what, if any problems there were with a build and whether the work carried out was carried out adequately.
It is at this stage that the parties will have all the evidence and the next step is preparing for Trial. This is often the point at which solicitors will be able to have a clear opinion of how the case is likely to go at Trial and start advising clients seriously about their options for settlement. Whilst clients may be of the opinion that I go to Court a lot it is actually quite rare. Trial will add roughly a third to the overall cost of the matter and so I will strongly advise my clients to look to settle at this stage to avoid further costs.