Justice - Avoiding Disputes and Claims

How To Avoid Disputes From the Outset

Hewitt Decipher Partnership recently presented a webinar on international arbitration. Panel members included a barrister, an arbitrator, and a solicitor. They were joined by HDP employees who provide expert advice to legal professionals working on construction disputes. The aim was to look at how to avoid claims.

Whilst these professionals earn fees from disputes, the overwhelming consensus was that the best way to deal with disputes is to not have them in the first place.

So, what can we do to avoid disputes right from the start of the project?

General Points

  1. Appoint competent consultants to advise you and manage your projects. Any possible savings on fees will soon be eaten up when things go wrong on the project.
  2. Make sure that the consultant appointed to administer the contract has adequately trained, qualified and experienced professionals working on your project.
  3. Employers and Consultants: Select an appropriate form of contract for the project and the Employer’s needs. Do not introduce changes that substantially alter the risk profile or obligations contained in standard forms of contract. When compiling contract conditions, or changing standard contracts, use a qualified and experienced professional.
  4. Employers Consultants and Contractors: The contract documents should reflect any changes introduced to the tender documents because of tender clarifications and negotiations between the parties. Avoid including volumes of ‘other documents’ as appendices to the contract. This is not good practice.
  5. Employers and Contractors: If things start going wrong, bring experts in to advise you as soon as possible. Avoiding expert advice until after disputes have crystalised will be significantly more expensive in the long run.

Tips for Contractors

  1. Contractors: Make sure you have properly trained, qualified and experienced professionals on your project to administer and manage the contract. Not doing so is definitely ‘penny-wise, pound-foolish’.
  2. Contractors: Create and submit a programme in accordance with the contract time frame. On complex projects, prepare an initial short-term detailed look ahead programme. But update as soon as possible with a detailed programme.
  3. Contractors: When it becomes necessary, revise the programme to take into account changes to the project or to your plan to complete the work.
  4. Contractors: Prepare programme updates on a regular (minimum monthly) basis to show actual progress and the current projected completion date. Do not falsify the results to paint a more favourable picture. Quite apart from providing inaccurate advice to the Employer, this will hurt you if you have entitlement to extensions of time.
  5. Contractors: Follow your contractual obligations around giving notices. Make sure notices contain appropriate information. Prepare them in accordance with good practice (see advice in our other articles).
  6. Contractors: Submit claims in the contractual time frame. Make sure they are well-written, clear, and easy to understand.

Tips for Contractors and Engineers

  1. Contractors and Engineers: Keep good records. Make sure that they are easy to find and retrieve.
  2. Contractors and Engineers: Maintain separate registers for Notices of Claims and for Claims. Review and discuss them regularly.
  3. Engineers: Submit responses to claims within the contractual time frame and communicate your findings clearly.

I hope this advice helps your projects to avoid claims and costly and time-consuming disputes. And remember, our friends at HDP can help you resolve disputes. Or with our help, why not learn how to avoid them yourself.

Progress Updates – Fact or Fiction?

Contractors often shoot themselves in the foot when preparing progress updates for the employer’s team. Many times we see months worth of updates which present a rose-tinted view of project progress.

Whilst it is tempting to keep reporting good news month-on-month, be wary. A less than competent consultant may believe such reports because good news will not involve them in additional and troublesome work. However, you could be causing problems for yourself further down the line.

Problems frequently arise when the contractor needs to submit a claim for an extension of time. It becomes very difficult for him to subsequently tell the employer’s team: “I know we kept telling you that there was no delay to the completion date, but actually there is and it’s not our fault, so please can I have an extension of time.

Read more

Site Access & Time at Large - Battersea Stock Image

Time at Large - An Explanation

A blog reader asked for an explanation of “time at large”. This is not something that I have personally come across in practical terms. For the advice that I am about to give, I am indebted to my ex-boss, Roger Knowles. Roger provides an explanation in his book, 150 Contractual Problems and their Solutions. Roger explains it arises:

"when a contract is entered into with no period of time fixed for completion. Where this occurs, the contractor’s obligation is to compete within a reasonable time."

I have never experienced such a situation and I expect that when it does occur, it will be on Read more