DISPUTES
ADRIANKEARNEY, CHARTEREDARBITRATOR ANDCONSTRUCTIONDISPUTE EXPERT DISCUSSES CURRENT TRENDS INDISPUTE CASES… Samples in court – spread sheet control
Adrian Kearney.
C onstruction and civil As any Arbitrator or Adjudicator knows, and more lately mediators, they are often confronted with claims that consist of a plethora of small items of variation on engineering disputes often create a life of their own. copious spread sheets. This creates substantial work for the experts as they put them all together to come to a common method of dealing with them, (never mind the delay claim!). I know as an Arbitrator I have often sighed with the enormity of the spreadsheets. There can be an attempt to overwhelm or filibuster with a claim presented in such a manner. How do we deal with it? In a recent case, the Technology and Construction Court, in what was a professional negligence case, gave consideration to the use of samples. The case related to a retail and residential development built circa. 10 years ago. Going way over budget, the Claimant settled its matter with the Defendants at approximately twice the contract sum. (I’m sure we can all relate to similar stories). Blaming the consultants, the Claimant went to
litigation seeking recovery against the whole consultant team. This is a case where there were at least 3,600 variation instructions alone. The Claimant, in bringing its case, took a sample of approximately 122 with full detail, extrapolating the remainder by reference to the princely sum of £24m. There were objections and cries of foul! The case was moving to the Defendants wanting the matter struck out - serious stuff. A Claimant/Plaintiff is required to prove its case, but Court rules also give lie to the need for cases to be dealt with at proportionate cost. The Defendants also agreed that in some circumstances, sampling would be acceptable. By way of example, where there is repetitive work, say for example housing schemes, one dwelling could be representative of the whole for the contract. The case worked its way through the issues, with the Judge examining the variations claim. The guidance went to a position that if the case lends itself to such an approach (appropriateness) the Plaintiff must show to the Court that the sample is indeed representative. In this instance
the Judge required a further 160 to ensure that the presentation was more representative. This was a novel approach in the particular circumstances, and where there is an increase in professional negligence cases, it may become more familiar. The number is rising. I have been involved in a significant number of contracts recently and increasingly under appointments the contract administrators are required to consult with their clients prior to instructing variations. However, within Fidec and NEC etc there are tight time constraints and emails can be adduced as instructions or indeed silence, backed up by the contractor’s letter. In Fidec 2017 and onwards, however, an email directing works does not qualify unless it is specified as a contract variation. Each contract differs and “Z” clauses can impact, meaning that it can be a minefield. So, the moral of the story is, read your terms and conditions of contract and/or appointment, stick rigorously to the rules and you won’t find yourself in the position of needing sampling in Court or Arbitration. This applies throughout the built environment, design team and construction team alike. If you’re playing Monopoly, read the instructions. Adrian Kearney is a Chartered Arbitrator and expert in civil engineering and construction dispute both local and internationally. He has presided in over 250 Arbitrations and attended court in many cases spanning over 25 years. He can be contacted at adrian@kearneyconsult.com or +44 (0)28 9038 8395.
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