Many homeowners look to maximise the value and space of their property by undertaking improvement works, extensions, or loft conversations. These works can add significant value to their homes, whilst also increasing the usable space and desirability of living there. However, in the event that the contracted works were not to satisfactory standard, these ‘improvement works’ can often become a nightmare, causing no end of stress and issues to resolve and sort out, often at additional cost.
Whilst we appreciate that the majority of contracts run smoothly, and that the works undertaken by contractors are typically to a high and satisfactory standard, what can a homeowner do in the unfortunate event that the works to their property are not suitable? Will Bartley, a specialist property litigator at Porter Dodson, discusses that very topic in this Q&A.
In its simplest form, a construction dispute is a dispute regarding works done to a property, often from a repair, an extension or an improvement basis. As mentioned above, this includes loft conversions, extensions, conservatory construction, or internal remodelling or garden landscaping. In reality, if you are paying someone to do something to your property, it could well fall within the term of ‘construction dispute’.
A typical scenario would be that a homeowner contracts with a company to undertake works to their property. For example, a kitchen extension. The contractor would draw up a contract, which the parties would agree to, finalise terms, and sign, before undertaking the works or making payment.
During the course of the works, issues might arise. This could be in respect of the quality of workmanship on site; the suitability of materials; the necessary level of experience and expertise of the contractors; or a general dispute as to quality or payment. Once this has arisen, it is common for the respective parties to become entrenched in their position, and it can be difficult for them to resolve their differences to proceed with the remainder of the contract.
We would always recommend that the parties have an open and honest dialogue with each other regarding any issues. Often minor disputes can be resolved without the costly intervention of third parties. Make sure that all communication between the parties regarding issues is recorded in writing, and that you make reasonable attempts to resolve matters.
However, for more complicated disputes, or in matters where talking to the other party has not been productive, we would strongly recommend that early intervention from Solicitors and qualified experts, such as engineers or surveyors, is sought to help mitigate and limit any issues that arise. It is very important that one party does not take steps which breach the contract, as the consequential losses, damages and costs that can stem from such action can often outweigh the cost of the original contract or required remedial works.
This will be very case-specific. There is no strict rule that states that a contractor must be allowed back on site to fix any issues. However, it will often be down to the homeowner to try and mitigate any losses suffered. Therefore there will be a balancing act between limiting ongoing costs (such as employing another contractor to fix the original contractor’s mistakes), against the duty to mitigate loss and possible unrecoverable costs.
A homeowner will also need to be careful not to breach the contract themselves by employing other contractors before taking legal advice, as certain acts can lead to a repudiatory breach of contract, which may lead to adverse damages and costs to the homeowner. If however the original contractor’s works are so bad that all trust and faith has been lost in them undertaking any further work, then yes, there are circumstances in which the homeowner can refuse to allow them back to complete further work.
Possibly, yes. The Court system is there for a reason – to enable aggrieved parties the opportunity to get the outcome that they feel they are entitled to. After reviewing your contract and the events that led to the dispute, we can advise you on the Court process, your prospects of success, and the probable costs involved in proceeding with Court action. Before any Court action is commenced, we would write to your contractor with a Letter Before Action (setting out your claim and affording them an opportunity to resolve matters) in compliance with the Pre-Action Protocol for construction disputes.
The Court process will often involve expert instruction in construction disputes, along with witness statements, disclosure of evidence and a final in-person Hearing at the local County Court. Claims can typically expect to take between 9-18 months to resolve. Whilst this can be a daunting process to go through, we are experienced in bringing and managing claims of this nature, and would be happy to represent you throughout your claim.
Potentially yes. It will depend on the circumstances, and how entrenched the parties are in their respective positions. However, options such as the following are often available to help reduce litigation costs and bring a timely resolution for the parties. It may also be mandated in your contract that one of the below is undertaken before Court action is commenced:
Mediation: A neutral, qualified mediator will be appointed jointly between the parties. The parties may have representatives with them, or they may be representing themselves. The mediator would speak directly with the parties individually, in an attempt to help the parties reach a resolution. Mediation would not be binding on the parties unless an agreement was made between the parties at the conclusion of the mediation and formally signed and executed as such. The benefit therefore is that the parties can explore numerous avenues of resolution and offers, without being tied into it until the point that a complete agreement has been reached. If mediation is unsuccessful, typically Court proceedings would follow thereafter.
Arbitration: An impartial professional/expert is jointly instructed to make a decision on the dispute at hand. It is far quicker than going through Court proceedings, and cheaper. However, it is unpredictable in nature, and due to the speedy process of adjudication, can often be tricky to navigate without proper litigation experience or expertise. The decision of the adjudicator is binding with only limited grounds for appeal, and the adjudicator has the ability to award costs. Given this, the result of adjudication can often be unpalatable to the losing party.
Adjudication: Similar in nature to arbitration above. Adjudication is typically a 28-day procedure which is commenced by one party serving notice on the other. There are strict time limits to adhere to, and the process is onerous on the parties if they are not represented and prepared, given the short timescales. It can therefore be used as a tactic, in the event that you know that the other party is not suitably prepared to deal with the respective required steps. Adjudication decisions are enforced by the Courts, and generally the adjudicator has no power to award costs in the initial determination unless the parties have agreed otherwise. It may be seen as a more short-term fix, typically in respect of interim payments or extensions of time for completion of works.
Unfortunately, in some cases, the above options may not be suitable or fruitful in bringing a resolution, and Court proceedings may be required. It is important to consult a qualified specialist property litigator if you are considering such a claim, or if you are on the receiving end of one.
Please note that advice in construction disputes is very case-specific, and therefore the above is simply a guide as to the process and common questions that we get asked. We recommend that you take specialist legal advice if you have a construction dispute enquiry. Porter Dodson’s specialist Property Litigation department would be happy to assist with such enquiries.