1. The following is a sample of the key services which RM is able to provide in assisting its Clients to resolve disputes:
Claim Preparation – Formal Dispute Resolution
2. The most effective way of managing the preparation of a claim is to establish the strengths and weaknesses at the outset.
3. This is achieved by carrying out Risk Reviews which allows Clients to make an informed decision in respect to pursuing its claim.
4. The claim is often prepared initially as a Position Statement and formalised in the event of negotiation failure.
5. The Claim Document or Position Statement would include:
5.1. How the Claim arises.
5.2. The legal/contractual basis of the Claim.
5.3. A narrative providing essential background.
5.4. Evidential material.
5.5. Delay analysis (where required).
5.7. Summary of entitlement and remedies.
6. The Claim Document can ultimately be used for any of the following processes if required:
6.3. Pre-Action Protocol (Litigation Support).
7. It is widely recognised that Adjudication is not perfect for resolving disputes, but it is perhaps the most effective process available in construction and engineering.
8. RM provides the following services:
8.1. Preparation of the Notice of Adjudication.
8.2. Preparation of the Referral Notice.
8.3. Preparation of any Reply documents.
8.4. Dealing with and managing all interlocutory and jurisdictional matters.
8.5. Providing representation and advocacy at Adjudicator’s meetings.
9. For some time now the Courts have encouraged Mediation, and indeed if a Party embarking upon litigation refuses to mediate, then it is likely that it will not be able to recover all of its costs in any subsequent litigation.
10. Mediation can of course be engaged by two parties of their own volition.
11. RM provides the following services:
11.1. Early evaluation of our Client’s strengths and weaknesses by carrying out Risk Reviews.
11.2. Preparation of our Client’s case in some form of Position Statement.
11.3. Assistance with the appointment of a suitable Mediator.
11.4. Continuation of negotiations (when appropriate) during the Mediation process.
11.5. Advice in regard to other commercial and contractual matters outside of the Mediation dispute.
11.6. Presentation of our Client’s position during the Mediation.
11.7. Assistance (ordinarily alongside our Client’s Lawyer) with the drawing up of any Agreement following a Mediation.
Pre-Action Protocol and Litigation
12. The Protocol generally applies to all construction and engineering disputes. There are, however, some limited exclusions; one important exception is that it is not necessary to comply with the Protocol if you have already been through an Adjudication process or you wish to enforce an Adjudicator’s Decision.
13. The purpose of the Protocol is to encourage the two parties in dispute to disclose as much information as possible prior to any proceedings so that any dispute has a good chance of being resolved without reverting to Litigation.
14. There is a formal procedure to be followed which is set out in the Protocol and, if this is not followed, a defaulting party may be penalised when it comes to deciding who should pay the costs of any action.
15. RM provides the following services:
15.1. Assessment of our Client’s position at the outset by carrying out a Risk Review.
15.2. In the event that RM’s Client is the Claimant, preparation or assistance with preparation of the Letter of Claim in accordance with Paragraph 3 of the “Pre-Action Protocol for Construction and Engineering Disputes”.
15.3. In the event that RM’s Client is the Defendant, preparation or assistance with preparation of the Defendant’s Response in accordance with Paragraph 4 of the “Pre-Action Protocol for Construction and Engineering Disputes”.
15.4. Representation at the Pre-Action Meeting(s) and/or Alternative Dispute Resolution procedure, for example Mediation, in accordance with Paragraph 5 of the “Pre-Action Protocol for Construction and Engineering Disputes”.
15.5. If proceedings are commenced, then RM is able to provide the same professional advice and assistance in respect to quantum and delay matters but representation in the legal proceedings would be dealt with and managed by the Client’s chosen Lawyer.
Expert Advisor and Expert Witness
16. In construction industry disputes it is common for Experts to be appointed by Lawyers to help the Parties and their representatives reach a compromise agreement or assist a Judge, Adjudicator or Arbitrator in arriving at a Judgment or Decision.
17. RM provides Expert Advisors and Expert Witnesses in respect to:
17.2. Programming and Delay Analysis.
18. There is an overriding duty to assist a Tribunal and provide an Opinion that is independent and does not promote the point of view of the Instructing Party.
19. This position is different when the Expert is acting as an Advisor assisting Clients negotiate and reach a compromise agreement.
Quantum Expert Advisor and Expert Witness
20. The Expert Advisor ordinarily becomes involved with a dispute before a formal process is commenced. The advice often includes:
20.1. The strengths and weaknesses of the position of one or both of the Parties.
20.2. The most likely position in respect to entitlement and valuation of work carried out.
20.3. This level of advice, at an early stage, often leads to a negotiated settlement.
21. A Quantum Expert Witness must follow relevant guidelines published by the Court and/or professional body. A Chartered Surveyor must follow the RICS Practice Statement and Guidance Note 4th Edition.
22. The RICS also published a Client Guide 4th Edition (April 2014).
23. The Quantum Expert Witness is ordinarily required to provide a fully detailed and reasoned report with detailed analysis and substantiation.
Programming and Delay Analysis Expert Advisor and Expert Witness
24. The Expert Advisor ordinarily becomes involved with a dispute before a formal process is commenced. The advice often includes:
24.1. The strengths and weaknesses of the position of one or both of the Parties.
24.2. The most likely position in respect to liability and entitlement to time and damages (Liquidated and Ascertained and General).
24.3. This level of advice, at an early stage, often leads to a negotiated settlement.
25. A Programming and Delay Analysis Expert Witness does not have a professional body with mandatory requirements, however, guidelines are provided by publications including:
25.1. The Society of Construction Law Delay and Disruption Protocol (October 2002).
25.2. The Society of Construction Law Delay and Disruption Protocol – Rider 1 (July 2015).
25.3. The CIOB Managing the Risk of Delayed Completion in the 21st Century.
26. The Programming and Delay Analysis Witness is ordinarily required to provide a fully detailed and reasoned report with detailed analysis and substantiation.