Construction

Main contractors (also referred to as primary contractors and general contractors) are responsible for the day to day oversight of the construction site. Main contractors are responsible for managing trades and vendors as well as communicating with all parties involved with the construction project.

Disputes are a persistent problem in the construction industry to the point where they are almost a normal way of working. The lion’s share of disputes are between the main contractor and the client, closely followed by disputes between the main contractor and a subcontractor. However, given their position at the heart of a construction project, main contractors can have disputes with suppliers, consultants and specialists up, down and across the supply chain.

What are the types of main contractor disputes?

The usual issues arising include:

• Disagreements over variations and the scope of work
• Culpability for delays which will usually go hand in hand with a main contractor’s applications for extensions of time to complete the project
• The value of final accounts
• Rectification and compensation for defective work
• Making and defending claims in professional negligence
• Unpaid fees and withholding payments

The good news is, the usual standard form construction contracts, in JCT or NEC form (provided they have not been amended), give a considerable amount of protection to the main contractor. However, that does not mean you are fully protected from all claims and challenges. The starting point in any dispute is to review the terms of the contract to see what has been agreed to, and what has been complied with. Putting resources into an early contract review is one of the most valuable things you can do to stop problems before they escalate.

How can we help with contractor disputes?

We have extensive knowledge of main contractor disputes, which means we are able to offer proactive and practical support to get your project back on track. We engage in all types of dispute processes and dispute resolution. This includes litigation, international arbitration and all forms of alternative dispute resolution from mediation to early neutral evaluation and adjudication.

We can help with both contentious and non-contentious construction issues, with a multidisciplinary team who can undertake all aspects of legal work. Our lawyers have an outstanding record in this area so you can be confident that we won’t just tackle the issue at hand, but provide tactical advice for avoiding problems in the future.

Disputes between contractors and subcontractors usually revolve around payment or the timing and quality of the work done. At Collyer Bristow, we understand that disputes can have a significant impact on a subcontractor’s reputation and cash flow. We work hard to make sure you’re paid swiftly and are not taking the blame for someone’s else’s mistakes.

Can payments be withheld from a subcontractor?

The Housing Grants, Construction and Regeneration Act 1996 (“Construction Act”) gives subcontractors the right to be paid for the work they have carried out under a commercial construction contract. Arbitrators and the courts do not look favourably on clauses that try to block or delay payment, such as “pay-when-paid” payment terms. If the contract does not contain an adequate payment mechanism, then the Scheme for Construction Contracts (the “Scheme”) will apply by default to ensure there is an effective payment mechanism that will enable a subcontractor to claim payment.

In the heat of the moment, it’s tempting for sub-contractors who have not been paid to walk off-site.

This could leave you wide open to serious consequences, including the extra costs incurred due to delays in completing the project and allegations that you are in a repudiatory breach. There are some situations where you can down tools, but you’ll need a solicitor on board to make sure you do it properly – especially if the contractor has served a Pay Less Notice indicating that it was going to pay less than the amount set out in the contract.

What are the other types of subcontractor disputes?

Besides payment problems and disallowed costs, the main issues we see tend to be around the scope and quality of the work. This includes:

• Extra or out-of-scope work, such as undocumented change orders and claims for variations
• Informal time extension requests, meaning the work is not proceeding as scheduled
• Subcontractor substitution issues
• Coordinating and scheduling errors leading to delays
• Liability for liquidated damages or defects
• Liability to employers under collateral warranties

How can we help with subcontractor disputes?

In an industry where disputes are common, it is important to get everything in writing. This is especially true for subcontractors who generally are unable to communicate with the employer directly, and have to use the main contractor as a conduit.

Our construction team offers an end-to-end service and can help with everything from drafting subcontractor contracts to quickly resolving a dispute. Going to Court is often not required for subcontractor disputes. Our strong reputation in this area means we can often save you time and money by settling the dispute through expert negotiation or some other form of alternative dispute resolution.

Funders are at least one step removed from the activities taking place on a development site. As such, they rely on rigorously drafted contracts to protect their investment. Our construction solicitors work closely with banks and other lending institutions to put watertight development obligations in place. We’re also on hand to take urgent dispute resolution action whenever a developer defaults on their commitments.

What do funders of a development project need to consider?

Development finance transactions typically will include more comprehensive protections than in a typical funding transaction. This is because the value of the undeveloped land is likely to be lower than the cost of funding the construction. It’s essential for funders to tick all the right boxes before they commit any hard-earned money to the scheme.

Some of the documents and services we can help you with include:

• Conducting robust due diligence
• Drafting watertight funding agreements and construction contracts
• Negotiating step-in rights so you can take over the project altogether
• Drafting professional appointments, collateral warranties and subcontracts, ensuring you can pursue any member of the construction team

• Bonds guarantees and insurance
• Drawing up deeds of priority to accurately set out the primary and secondary lenders position
• Alternative dispute resolution to quickly resolve disputes
• Litigating if things go seriously wrong

Why choose Collyer Bristow to support your construction investment?

As a full-service law firm, we have specialists in construction law, construction disputes, finance and tax to cover all aspects of your deal, so you get seamless legal support for your entire transaction. We’re known for our expertise, commerciality and strategic thinking to get the best results possible for our funder clients.

For real estate developers, having an experienced legal team at your side can significantly enhance the viability and profit margins of a project – or even make the difference between whether a deal happens or not. We help developers resolve construction issues swiftly so that you can focus on developing your site without the distraction of a legal dispute.

What are the legal challenges facing developers?

From site acquisition and planning applications to construction and disposals, disputes can occur at any stage of the property development life cycle. We regularly advise developers of all sizes on issues such as:

• Clearing the site of existing occupiers
• Overcoming development constraints (eg oversailing permissions and easements)
• Negotiating the building contract, professional appointments, bonds and warranties
• Ensuring performance of the building contract
• Delays in handing over possession
• Deficiencies in the quality of construction
• Demands from contractors for additional or hidden fees
• Disputes over valuation or overage clauses
• Disposal programs and claims from purchasers
• Managing fallouts from contractor insolvency

Why Choose Collyer Bristow for your developer dispute?

We understand that you do not want to be embroiled in costly litigation because this will ultimately affect the profitability of the project. That is why we aim to resolve disputes as quickly as possible, using creative approaches through litigation, adjudication, arbitration and other forms of alternative dispute resolution wherever possible.

Our global team has the experience and sector knowledge to get the best outcome for you in every type of dispute. We have a particularly strong record on complex, high value and multi-jurisdictional claims.

Disputes with contractors, engineers and trades can not only be stressful, but they can also knock your project sideways and disrupt your cash flow. We specialise in taking swift, decisive action. Our leading construction dispute solicitors can advise residential house builders on all types of building disputes, including alternatives to litigation such as mediation and adjudication.

What is a house building dispute?

While all parties start off with the best intentions in construction, and hopefully a solid contract suite is in place, this is not enough to avoid every dispute. Major house-building programmes often come with a great deal of complexity. Complications that require proactive legal advice include:

• Work carried out by trades that are not specified under a contract
• Poor or defective design or workmanship
• Supplier issues regarding the timing or quality of materials
• Pay Fewer notices and payment disputes
• Liability for losses incurred due to variations and extensions of time
• Miscalculation of supplies or timings
• Disputes with customers and warranty claims
• Labour disputes where trades walk-off projects partway through

How do you resolve a house building dispute?

There is more than one way to resolve a dispute and you can usually do so successfully without a trial. We usually suggest some form of alternative dispute resolution as a first step, as this can generally lead to a more fair and commercial settlement. We have contacts with various experts that we can engage to assess the quality of works and materials, for example, so we can quickly clarify whether workmanship falls below professional standards or the standards agreed upon in the contract.

If ADR doesn’t work, we can make or defend a claim in court. Our client-first approach means we will always provide clarity on risk and costs before guiding you towards a successful conclusion.

Whilst the various options of alternative dispute resolution may be quicker and cheaper, court proceedings are sometimes the right choice for getting the results you need. If a construction dispute does proceed to trial, we’ll be there to support you every step of the way.

What is the litigation process?

The process begins when the claimant files a claim form with the court. The claim form must set out a clear summary of the claim against the defendant including the facts supporting the claim. Once the court has sealed the claim, it must be served on the defendant within strict timescales. Failure to do either of these things can result in the claim being time-barred and liable to be struck out.

What happens next depends on whether the defendant accepts or defends the claim. The defence is a critical document in litigation, not least because if it is weak with little prospect of success, the claimant can make an application to dispose of the case without a trial.

Once the defence is filed, the parties will have a clear idea of which facts or legal issues are in dispute. The court will then arrange a case management conference to discuss the next steps including a timetable for producing documents and lining up witnesses in readiness for the hearing.

What are the advantages of construction litigation?

• Claims valued over £250,000 are heard in a specialist court called The Technology and Construction Court (TCC)
• The TCC is governed by clear rules which give the litigation a lot of shape with little room for doubt about the processes and timelines
• A specialist judge with the deal with the case
• The court can handle large and complex disputes
• The court can hear challenges to arbitration decisions
• The decision is final, binding and enforceable

Is litigation the right choice for me?

Litigation is often a long-winded process and it is likely to be the most expensive way of resolving a construction dispute. However, if the case depends on a point of law, is high-value or especially complex, the expertise of a TCC judge may be beneficial. Also, ADR methods all involve compromise. If you feel that compromise would not give a fair outcome, then it may be better to litigate.

At Collyer Bristow, we have strong relationships with specialist construction barristers who can represent our clients at the TCC. We are able to support you through the litigation process, from evaluating the case pre-claim all the way through to appeal if needed.

There are many ways to solve a construction dispute, and litigation should only be considered as a last resort. Our construction team is experienced in many kinds of alternative dispute resolution. We can guide you through the options and provide tactically astute advice at each stage.

What are the options for construction alternative dispute resolution?

Besides litigation, there are five main ways to deal with a construction dispute. These are:

• Negotiation between the two parties. This offers a fast and effective resolution for simple misunderstandings and disputes that have yet to escalate. This is the preferred starting point for many disputes and has the benefit of being fast while preserving the business relationship.
• Expert Determination. This is where a third-party expert is instructed to make a decision on the dispute based on their professional opinion. It is commonly used to resolve disputes relating to costs.
• Mediation. This is where an independent person facilitates discussions between the parties to explore the possibility of a deal.
• Adjudication. This is where a neutral third party, often a technical expert, gives a binding decision on a dispute. The decision is binding on the parties unless the parties agree otherwise or one of the parties decides to litigate where the dispute will be heard and determined anew. It typically is used for quickly resolving disputes when both parties are still involved in the delivery of the project.
• Arbitration. This is where an arbitrator takes on the role of the judge and makes a binding decision based on the facts of the case. Arbitration is more formal than other types of ADR but allows the parties to reach a commercial (as opposed to a purely legal) resolution to their dispute.

Is ADR compulsory in construction disputes?

There is no general rule that says that ADR must be used to resolve a construction dispute and it will depend on the nature of the construction works and the contract. However, the contract may specify one or more forms of ADR which the parties can use to avoid the cost and delays of going to court. Also, in some commercial construction contracts, even if the contract says that there is no contractual entitlement to adjudicate, the parties will retain a statutory right to adjudicate under the Scheme.

Even where litigation is the preferred option, the courts will encourage you to submit to ADR first. The Pre-Action Protocol for Construction and Engineering Disputes requires the parties to exchange correspondence outlining their respective positions and meet on a without prejudice basis before litigation commences in the hope of agreeing a suitable method of ADR. If you unreasonably refuse to engage in this process, you might find that you are barred from recovering your legal costs even if you go on to win your case.

How can we help with construction alternative dispute resolution?

Getting into lengthy litigation is the result nobody wants. As one of the UK’s most respected construction disputes teams, we have experience in all kinds of alternative dispute resolution. Our lawyers can help you choose the best option for quickly and efficiently resolving your case.

What is construction adjudication?

Taking place over a 28-day period, adjudication offers a quick, cost-effective alternative dispute resolution strategy and is especially useful in disputes relating to payment, extensions of time and loss and expense claims. Any party to a construction contract can refer a dispute to adjudication.

What is the process for construction adjudication?

The process starts when a party serves a Notice of Adjudication. This document sets out the nature and scope of the dispute, the remedy being sought and details of the proposed adjudicator. This same party must then serve a ‘Referral Notice’ giving full details of the claim with supporting documents.

The other party then has an opportunity to serve its response (defence). There may be further submissions by either or both sides if the adjudicator asks for them.

The adjudicator will give their decision within 28 days (which may be extended unilaterally by the Adjudicator to 42 days and even longer with the parties’ agreement) and the decision is binding on an interim basis meaning the parties will be bound by the decision until it is either finally determined in litigation or the parties reach an agreement. If the other side fails to comply, you can enforce an adjudicator’s decision by making an application to the court.

What are the benefits of construction adjudication?

• Costs are marginal compared to litigation or arbitration
• One of the fastest ways to resolve disputes, ensuring that projects – and cash flows – stay on track during the construction process
• You can apply for an adjudicator with particular expertise who is familiar with the issues in dispute
• The decision is binding and enforceable until it is either finally determined in litigation or the parties reach an agreement.

Is construction adjudication right for me?

The speed of construction adjudication is both an advantage and a disadvantage. Generally, the referring party is in the driving seat and has the benefit of preparing ahead of time. The responding party may be on the back foot as they scramble to deliver a response in just a few days.

Unlike litigation or arbitration, the process may feel a little rough and ready. The short timescales mean there is no opportunity for a careful examination of the facts or cross-examining witnesses.

If the dispute is particularly complex, requires substantial evidence, or involves points of law, then we may advise that adjudication is not the correct form of dispute resolution.

However, for certain types of disputes, adjudication will get you an answer – fast.

How can Collyer Bristow help?

We kick off every case with a high-level review. This allows us to create the right adjudication strategy for your case, such as separating out different elements of the dispute or dropping some weaker elements that could hurt your position. Our lawyers have decades of experience in this area and will help you frame the best possible case.

If you have received a Notice of Adjudication, please also get in touch. We can help you mobilise quickly and submit the best response against tight timeframes.

Arbitration is one of the better-known alternatives to litigation and is a shorter version of the court process. It is often used in the context of complex cross-border construction disputes but can be used for purely domestic matters of any value as well.

What is construction arbitration?

Arbitration is one of the more formal methods of alternative dispute resolution. The rules are set out in the Arbitration Act 1996, although there is much more flexibility around timings. Having a strong set of protocols and processes which the parties must adhere to ensures that arbitrations are fast, balanced and fair.

The process itself is similar to a trial, in that the parties present evidence to the arbitrator. The arbitrator will then make a decision based on the facts, evidence and relevant principles of law.

What are the advantages of construction arbitration?

• Parties can appoint an arbitrator who has expertise in the matter
• You can choose the format and timetable of the arbitration
• It’s faster and more flexible than litigation in court
• Generally more cost-effective than litigation
• Arbitral awards are confidential – there’s no public record of proceedings
• Ideal litigation alternative for complex and/or cross-border disputes
• Decisions are binding on the parties with limited right of appeal, bringing the dispute to an effective close.

How can we help?

If you want to resolve your dispute out of court, arbitration can be a quicker, cheaper and more flexible option. Our expert construction lawyers have years of experience acting for contractors, subcontractors, employers, developers and funders going through the arbitration process. We give careful consideration as to whether arbitration is preferable in your dispute and support you seamlessly through every stage of the process, from the tactical selection of the best arbitrator to enforcing the arbitrator’s award.

Delays and disruptions are endemic in the construction industry and can lead to significant cost and time overruns. The outcome depends on how well you plan for them, how you quantify them, and what you do when making or defending claims.

What is delay and disruption in construction contracts?

Delays and disruptions are typically mentioned together and they often occur at the same time. However, they are not the same thing. Essentially, delay is time-related, meaning an event occurs that slows or stops the construction programme and the contractor cannot complete the works on time.

Disruption is productivity-related. This occurs when something interrupts the contractor’s usual working methods and the work is carried out less efficiently than it would have been had the disruption not occurred. Disruption may lead to late completion of the work, but not necessarily so. For example, the contractor may work out of sequence, stack trades or authorise excessive overtime to deliver the project on time.

What is the remedy for delay and disruption?

If the delay is caused by the contractor, the employer may have a claim in liquidated damages under the construction contract. To avoid liability, a contractor will first turn to the extension of time clause which permits programme extensions for certain events. This can lead to disputes over the amount of additional time that the contractor should be allowed to complete the works, or whether there’s any basis for a time extension at all.

Conversely, if the delay or disruption is the employer’s fault, the contractor may have a right to compensation. The aim is to recover additional costs incurred, or the losses suffered, as a result of a disruptive event. For more on this, see our separate page on loss and expense.

Generally, the contract will contain a mechanism for dealing with delay and disruption. It’s important to follow the mechanism to the letter, otherwise, the entitlement to claim may be lost.

How can Collyer Bristow help?

Minimising liability for delay and disruption in construction contracts starts at the drafting stage. Our lawyers are experts in the standard form contracts, including JCT, NEC and FIDIC, and can ensure that the clauses relating to delays, disruptions, extensions of time and liquidated damages meet your needs.

If a delay or disruption event occurs, we can walk you through the procedural requirements and get an independent valuation of the claim to quantify the impact. Our specialists work with employers, contractors and subcontractors and have a strong record of success in this area, so you can be confident that you have the best chance of getting a positive outcome.

When things are delayed on your construction project, you need expert advice fast. The longer a delay lasts, the greater the impact it can have on costs, time, and your reputation. At Collyer Bristow, we find solutions to even the most complex extension of time claims. We’ll help you analyse the true cause and effect of delay and disruption and ensure the earliest possible settlement on the most advantageous terms.

What is an extension of time claim?

It’s fairly common for a construction project to be delayed or disrupted to the point where the contractor can no longer deliver the project on time. Depending on the reason for the delay, compliance with any notice requirements and the specific terms of the construction contract, it may be possible to get an extension to the construction programme. Examples of relevant events include:

• Contract variations
• Adverse weather conditions
• Delays in gaining access to the site
• Force majeure (acts of God)
• Insurance events such as fire or flood
• Delays in supplies by the client
• Strikes and labour disputes

Extensions of time provisions are important as they stop the contractor or subcontractor from being liable to pay liquidated damages for the delay.

How do you make an extension of time claim?

The contract will usually set out the mechanism that the contractor must follow for claiming an extension of time. Generally, the process starts by notifying the client of the occurrence of a delaying event. If the parties cannot agree on the length of the extension, or whether one should be permitted at all, the matter will usually go to an adjudicator for determination.

How can Collyer Bristow help?

Assessing claims for an extension of time can be complicated. Often, there are concurrent delays, with different people to blame for each one. The contractor is required to mitigate the delays and any resulting loss, even where the delaying event is outside their control.

We offer a specialist service to guide you safely through an extension of time claim. We can help demonstrate the link between the event and the delay, interrogate the project programme, and ensure that your claim of an extension is correctly supported by appropriate evidence. This can dramatically improve the success rate of your claim by the adjudicator.

Most standard forms of construction contract contain loss and expense provisions. These clauses describe the process for recovering any additional costs incurred by a contractor or subcontractor as a result of delay or disruption to the works caused by the client.

What is a loss and expense claim?

Loss and expense claims are usually associated with delays and disruptions, but they can arise anytime a contractor or subcontractor incurs a loss because of something the client was responsible for, such as:

• Delays in giving the contractor possession of the site
• Delays in giving instructions
• Failure by the employer to provide goods or materials
• Contract or design variation
• Issues relating to the Construction (Design and Management) Regulations

These and other events can put the contractor out of pocket. For instance, the contractor may incur additional costs of labour, programme acceleration, plant and overhead or loss of profit, especially if the delay causes them to decline work elsewhere. A loss and expense claim seeks to get these losses back.

What is the process for making a loss and expense claim?

If there are contract terms relating to loss and expense, they must be followed exactly. The claim can fail because of defective or late notices, for example, which may be a condition precedent for making a loss and expense claim. Collyer Bristow can advise on such matters.

The claim is for actual losses only. This means the claimant must be able both to prove the amount of loss and show how it relates to the offending event, activity by activity. It is vital that good records are kept such as overtime sheets or recording plant time wasted. In adjudication, claims that are not fully supported may be met by a big red pen.

How can Collyer Bristow help?

We can advise on:

• Analysing the entitlement to loss and expense
• Quantifying the claim
• Serving valid claims notices
• Compiling records and evidence
• Making or defending a claim in adjudication or another form of ADR, if required.

We understand that the loss and expense claims are not always easy claims to bring or defend. Our construction lawyers have the sector expertise to give you the practical strategies to ensure that claims are settled fairly and accurately at the earliest possible date.

Defects are a major cause of dispute and construction litigation. They occur whenever a construction project fails to perform as intended or does not meet the contract requirements. The type of defects can vary dramatically, from easy-fix defects discovered before practical completion to extremely significant defects that are noticed long after the project has been completed and require extensive remedial works to correct.

What are the types of structural defects?

Defects can be patent or latent. With patent defects, the error is spotted before the end of the defects liability period. The liability is often clear and the cost of correction can be quantified. Latent defects may not appear until years after the construction is completed. It can be much harder to determine liability and the cost of corrective action, especially if the defect is progressive and gradually becomes worse over time.

Defects can arise for the following reasons:

• The work was not carried out in accordance with good practice
• The wrong materials were used
• The design isn’t working the way it should

Who is liable for defects?

The procurement structure affects the liability of each party involved in the project. With a design and build contract, the contractor will generally assume liability as a single point of responsibility. In decentralised projects, it can be harder to get to the bottom of who exactly is liable for the defect. Collyer Bristow can help you make sense of it all.

Even if there is a claim, you still have to navigate through various pitfalls. Contractual documents can have limitations on scope and enforceability, and issues like insolvency can break the chain of liability. If you are an end-user who did not employ the contractor or design team, then you will want to ensure you have the benefit of collateral warranties, a structural defects warranty or latent defects insurance to protect your investment. You may be entitled to compensation if any warranties or guarantees that you were given do not deliver what they say they would.

How can Collyer Bristow help?

Managing the risks associated with defects should be addressed at the procurement stage to ensure that the right people are assuming responsibility for defects across the supply chain. At Collyer Bristow, we have a dedicated team of construction solicitors who have vast experience in drafting legal protections for all parties involved in a construction project.

Where defects are uncovered, our construction disputes team can review your potential claim. We will highlight the merits and pitfalls and help you to make an informed decision as to how to proceed. The sooner you act the better. There are deadlines for bringing structural defects warranty claims and early intervention increases the likelihood that a negotiated settlement can be reached, without the need for lengthy litigation.

Every professional who is engaged on a construction project has a duty to act with reasonable skill and care. When the level of service falls below the required standard and you lose out as a result, you may be entitled to damages.

What is professional negligence in construction?

Typically, a contractor, architect, surveyor, structural engineer, quantity surveyor, project manager and other consultants will be engaged in a construction project. Each of these professionals has a duty to act competently. If they do not, the consequences can be catastrophic, and you may have a right to adamages claim for professional negligence.

Examples of potentially negligent behaviour include:

• Project delays and cost overruns
• Improper supervision of the works
• Building regulation breaches
• Surveyor’s negligence in failing to identify defects
• Negligent document management by a PM
• Miscalculated costs and estimates by a QS
• Inadequate designs and drawings
• Wrongly specified materials

How do you make a professional negligence claim?

To make a case, you must show that:

• Another experienced professional in the same field would have acted differently; or
• The professional did not follow the common standards of practice in their field

The claim is brought against the professional advising you or, more likely, their professional indemnity insurance provider. These claims can be resolved in as little as 28 days through adjudication.

If you’ve received negligent construction advice, we can help you recover the money you’ve lost as a result. Strict time limits apply, so the sooner you speak to us, the sooner we can move your claim forward.

The design of a construction project usually falls to an architect. They prepare the plans and drawings, develop cost estimates in conjunction with a quantity surveyor, and supervise the construction work to ensure it follows the design. The architect may also be responsible for building regulations compliance, depending on the type of contract used.

Like all professionals, architects have a legal duty to act with reasonable skill and care. The level of service delivery is generally that of a skilled person in the same profession. The court would look at documents like the Architects Registration Board’s Code of Practice, as well as the contract documents, to determine if an architect delivered the standard expected of her.

If standards are not met, you could be in a position to make a claim for professional negligence. Collyer Bristow can help.

What is professional negligence by architects?

No one gets it right 100 per cent of the time, and a simple mistake that is easily rectified and does not cause you to lose out financially typically will not result in a professional negligence claim. Sometimes, however, an architect will provide poor, misleading or inadequate advice that falls below the required standard – and with devastating consequences. In some instances, a building may have to be demolished and completely rebuilt if the defective design makes it unsuitable for its intended purpose.

Where an architect breaches their duty of care, you have a right to make a damages claim in respect of your loss.

Some examples of architect negligence include:

• Preparing unsuitable plans, drawings and specifications
• Careless design advice
• Getting measurements wrong
• Taking on complex projects that are beyond the architect’s expertise
• Poor supervision of the work during construction
• Approving and certifying poor quality work or work does not correspond to the schedule of works

How do I make an architect’s professional negligence claim?

As with all types of professional negligence, you will need the expertise of a construction disputes solicitor to prove that the architect’s work fell below the required standard. You will also likely need to engage an independent expert who will verify whether or not there is a viable professional negligence claim. We are specialists in this area and can assess your chances of making a successful claim.

There are strict time limits in place for bringing a claim. In professional negligence, this is usually six years. However, the earlier you contact us, the better. Claims in negligence can be complex, and insurers will be involved. Our expert team can work with you to get the claim resolved quickly, so you can get the project, and your revenues, back on track.

By providing detailed estimates of construction and engineering costs, quantity surveyors can keep projects in hand and ensure value for money for the client. However, if the QS acts carelessly, a project can fail logistically, take longer than planned, and costs can spiral out of control.

If this happens and you lose out financially as a result, you may be able to make a quantity surveyor professional negligence claim.

What is negligence by quantity surveyors?

Like most professionals, quantity surveyors are bound by a series of professional standards. Some of these are written down in statutes and guidance rules such as the Royal Institute of Chartered Surveyors’ Code of Conduct. Others are common law tests for professional standards of skill and care.

Generally, a QS may be negligent if he fails to carry out his work to the same standard that a reasonably competent member of his discipline would have met. Note that the QS is evaluated against his peers – he is not required to deliver the highest standard attainable in that profession.

Examples of professional negligence by a quantity surveyor include:

• Negligent costing advice on a tender
• Inadequate budget planning, leading to the project being more expensive
• Careless materials specifications in bills of quantities
• Arithmetical errors
• Failing to take account of an employer’s cost limit
• Over-valuing works completed by a contractor
• Failing to deliver the work on time

How do you make a professional negligence claim against a quantity surveyor?

To make a successful claim, you have to prove that the work of the QS fell below professional standards and that you suffered loss as a result. This is known as causation. Generally, you will need to establish that you would have done something different if you had received the correct advice.

The courts apply a high level of scrutiny to establishing causation. This is especially true in construction projects where there are many apparent errors that can delay a project, but which will not necessarily give rise to a professional negligence claim.

Collyer Bristow has decades of experience in the complex area of professional negligence law. We can help resolve your claim, whether through negotiation, adjudication, arbitration or the court system as a last resort. Most building contracts will require you to participate in Alternative Dispute Resolution before you can pursue litigation, and it is wise to explore these options to ensure that the building project does not falter because you are involved in a QS dispute.

Our highly respected construction solicitors provide expert advice on contentious and non-contentious construction matters. We use our legal expertise and deep industry knowledge to ensure you have rigorous construction documents that always protect your commercial interests.

What types of construction documentation can we help with?

Getting the right documentation in place at the outset is the single best thing you can do to clarify roles, anticipate problems, and remove any friction that could hinder the construction process. Many of our clients are not aware of the range of construction documentation that’s available to protect their position, so we’ll walk you through the options available before putting anything in place on your behalf.

We can help you with all aspects of their construction and infrastructure documentation, including:

• Bespoke and standard form contract drafting
• Procurement and tender documents
• Professional appointments
• Pre-construction services agreements
• Performance bonds, sureties and guarantees
• Funder agreements
• Collateral warranties

Who do we act for?

We can assist any party to a construction project, including contractors, subcontractors, employers, developers, funders, investors, surveyors, public sector bodies and facilities management companies. We also represent the purchaser of newly constructed property, putting the proper contract assignments and warranties in place to make sure the buyer has the benefit of the documents and is protected against any issues that may occur further down the line.

Sometimes, it may be appropriate for the employer to novate the construction contracts to a purchaser, for instance, where the construction is still in progress at the time the property is sold. A novation will transfer all the obligations under a contract as well as the rights, such as the obligation to pay money. Collyer Bristow can help.

If you’re ready to go with procurement, we can run your contracts and documents through a fine-tooth comb. Taking early advice from a specialist construction documents lawyer with experience in complex, large-scale development is a wise investment that can give you added security.

Certain aspects of a construction project will always be of concern to the lenders who are financing it.

The optimum position for lenders is to have a fully ‘bankable’ transaction where most of the risk sits with the construction team, not the borrower. Above all, lenders require full rights to enforce their security, including step-in rights if it looks like the project is heading for trouble.

What are the key considerations for lenders?

Lenders will review the construction contract documentation against the entirety of the project and the financing terms. Some of the key things they consider will be:

• The experience, track record and credit position of the contractor
• The ability to take over the construction contract
• Access and inspection rights for the lender’s own technical advisers
• Assurances regarding how the works are performed – some lenders may have specific requirements
• Compensation events, such as limitations on the events that permit an extension of time
• No large limits on the contractor’s liability, so there is an acceptable recourse against the contractor
• Clear pricing and payment mechanisms, with limited adjustments
• Liquidated damages for delay or poor performance
• Warranty and defect obligations, so defects can be corrected quickly
• Extensive insurance protections
• Ongoing warranties and guarantees

In simple terms, lenders will put the construction documents under significant scrutiny to ensure that risk is moved away from the borrower as far as possible, and is reallocated to other parties. Where multiple contractors are involved, lenders will require comfort that there are no gaps between the various contracts, and a solid mechanism for how disputes will be resolved,

How can Collyer Bristow help?

We have years of experience acting for both borrowers and funders of construction projects. We can advise on all aspects of construction funding, including advice on the protection of lenders’ and borrowers’ interests, due diligence on construction contracts, advising on the terms of security documentation, drafting collateral warranties, and project monitoring arrangements.

For borrowers, early engagement is key. It’s harder to amend contracts after they are signed than it is to incorporate the financing conditions at the negotiation stage. Speak to us, and we can guide you safely through the process with minimum fuss.