In building disputes, success is often influenced not only by the facts of the case but also by the strategies employed by each party, and throughout my time as a barrister serving the construction industry, I have observed that builders can increase their chances of positive outcomes by adopting a few straightforward techniques
So what are the keys to winning? Here’s a few pointers:
1. Get a good lawyer
This is an obvious first step. A number of firms which specialise in construction can be found on the web. Look at their track record and learn what is said about them through word of mouth.
It is important to use a lawyer who specialises in the building industry. Construction law is a highly specialised area – too much so for a legal generalist to provide the best advice and representation.
2. Engage a building consultant
Most disputes are about building defects or quantification of building work, so it is important to engage a good building consultant with a strong track record.
The consultant’s area of expertise should be appropriate for the nature of the dispute. Where the dispute relates to design, for instance, your consultant will need experience in this area. Likewise, an engineer is needed where engineering failure is alleged. Also, the consultant should have experience in being subject to cross-examination.
This is a particularly important point. The wrong choice of consultant could significantly jeopardise your case. There have been several cases recently where the Bench has reprimanded one of the parties for poor expert evidence and inflated estimates of rectification costs.
3. Be up front
In order to give you the best chance, both your lawyer and your consultant need to be fully aware of anything which could jeopardise your case so they can be prepared to handle any issues or arguments your counter-party may bring up.
Where there were delays, defects or overcharging, your lawyer needs to know about these - as well as matters such as rectification costs, the length of any delays and what the contract stipulates with regard to claims for delays.
4. Get a written legal opinion
It is always good to get a written legal opinion at the outset of the case, which should provide you with an idea about best and worst case scenarios and the likely scenario in terms of chances of success, the amount that will be retrieved and the cost of litigation.
Insurers who are professional litigants always demand this type of information. You should as well.
5. Have deep pockets
Building disputes can drag on for lengthy periods and it is important that you have sufficient financial resources in order to go the distance.
It is equally important to be aware of your opponent’s financial position and the likelihood as to whether or not they will be able to pay in the event your case is successful.
6. Don’t be ruled by emotion
Never allow negative personal feelings to motivate you to take legal action. Building disputes are about dollars and getting things done, period.
As the old Italian saying goes, "if you want revenge, dig two graves."