What is construction litigation?
Litigation is the ‘traditional’ form of dispute resolution and depending on the type and value of dispute, proceedings can be brought in the County Court and in the High Court to resolve all types of disputes.
Proceedings are said to have been started when the court issues a claim form at the request of the claimant. Once issued, the claim form must then be served on the defendant within a certain period of time, as prescribed by Part 7 of the Civil Procedure Rules. Issuing and serving a claim form are 2 independent actions. Once the court has received the claim form, for the purposes of limitation time will stop, but it is only when the court that endorses the claim form that is then said to have been issued, and normally either the Court or Claimant can serve the claim form.
A claim form must contain, or be accompanied by, the particulars of claim. The claim form and particulars of claim are crucial documents and they must set out properly a summary of the basic facts (not the evidence), of the claim against the defendant, otherwise a failure to do this could allow the defendant to make an application to strike out the claim. There is a fee to be paid with the claim form, the amount of which depends upon the value and nature of the claim (and likewise should the defendant issue a counter claim).
When a defendant is served with court proceedings, he has to indicate whether he accepts the claim or intends to defend the claim. Again this must be done within prescribed time limits and the court must be notified of the defendant’s position. If the defendant wishes to defend the claim, he must serve a defence (including any counterclaim), within 28 days from the deemed receipt of the claim form. The defence is also a critical document because if the defence is regarded as weak, the claimant can seek to strike out the defence. A failure to serve a defence will allow the claimant to enter judgment in default against the defendant.
There are 3 tracks that the case will be allocated to. They are the Small Claims Track (normally for claims below £10,000), the Fast Track (normally for claims above £10,000 but below £25,000) and the Multi Track (normally for claims above £25,000). Track allocation will usually depend upon the sum involved, although time and complexity will also play a part.
For construction cases, there is a specialist court known as the Technology and Construction Court (“TCC”), and these courts are located in the main cities of England, including London, Manchester and Birmingham. Although litigation is generally perceived to be an expensive and long-winded process, the TCC is more stream-lined than the ordinary court lists, with its own specialist rules and procedures, and is committed to reducing delays and costs by effective case management.
The practitioners are experienced in assisting with litigation, and routinely instruct specialist construction barristers to represent clients at court hearings of all types.