Construction Dispute Resolution of Design Issues
An important lesson learnt from a study of construction dispute resolution is that the designers’ intention should be explicit and compatible with the form of building contract.
If it is the designer’s intention that working details be resolved on site, this should be made clear and the contractual mechanisms for dealing with this should be conducive to the co-operative approach and often collaborative effort that this engenders.
If, however, the parties intend that the building should be built in accordance with pre-drawn details, the drawings must be adequate for this purpose and completed in good time.
The current route to construction dispute resolution for most work in the UK is initially through adjudication. For most types of work, this will be an implied term unless dealt with expressly in the contract. Conciliation and arbitration clauses can be added, but these cannot remove the right to adjudication where statute requires this.
It is often difficult, by adjudicating, to justly resolve construction disputes over, for example, which defects are generated by the deficiencies in consultants’ designs and which flow from the builder’s misinterpretation of or limited compliance with drawn details, schedules and specifications. It is rare for all contributing to a construction project to do so flawlessly. But, in a construction dispute, resolution is fair when the impact of each of the flaws on the finished product is expertly judged. Construction Dispute Resolution by adjudication is often poorly suited to this purpose and often the adjudicator, perhaps accepting there is merit in both sides’ arguments and lacking time for exhaustive analysis, splits the award roughly equally between each side.
Working it out on site...