Construction disputes are a great source of lessons for everyone in the sector. But we must remember that those stories may be tragedies for the parties, especially individuals.
As a lawyer, I am often asked to comment on friends’ issues and, having listened to their litany of woes – my first question is always “how much of your life do you want to give up for this issue?“
All disputes come at a huge personal cost.
Even if we have the time and money, and assuming we have legal right on our side, we many not have the energy to devote to that fight.
It is much more positive to ‘chalk it down to experience’ and move on, than to stay mired in groundhog day – having to relive an unpleasant negative experience, listen to their complaints and feel a failure for years. Not all claimants deserve to be ‘paid off’, but sometimes it is the right thing to do for your sanity.
Reading through a recent judgment the judge noted sanguinely:
“It is a great shame that the parties have been unable to resolve their dispute out of court, given the amount of time, effort, stress and cost the whole process has taken for the individuals concerned. It is of course the function of the court to resolve disputes where the parties are unable to do so. However, I am acutely aware that, as so often occurs in this type of case, the outcome will likely be a financial disaster for one of the parties and, even if not, likely an expensive and ultimately unrewarding result for both.“
The judgment was issued in January 2022, for a project that ended acrimoniously in 2017. Negotiations and mediation were unsuccessful both before and during the coourt proceedings. The court proceedings were lengthy and very costly, with no money being awarded to the contractor despite over 150 separate items being claimed.
5 years of energy, time and money for nothing.
Nada. Zilch. Nul.
What should you do?
First, choose your client or supplier carefully.
Second, use a contract to record your aims, set remedies for breaches, manage risks and include a good change process so the deal is updated throughout the project.
Third, continue to communicate during the project to ensure you both understand the progress, changes needed and ensure the contract still represents your joint aims.
Fourth, terminate only when there is no other viable option.
Fifth, litigate rarely. Ideally negotiate or mediate. Even the judge said that the court process had not served the parties and that what would have been preferable was “a fair and open, but summary, trial process in which the key issues were ventilated and which, importantly, was reasonably speedy and reasonably inexpensive.”
