星空传媒

Outline proposals were announced in July for the unification of the High Court and county courts. Such a simplification of the dispute resolution process runs counter to recent trends but should be warmly welcomed.

Over the past 10 years, the number of processes and forums that are commonly used for the resolution of construction disputes has multiplied. This has resulted from the introduction of statutory adjudication and the increasing use of mediation and other alternative dispute resolution processes. The larger number of forums has meant that construction disputes are increasingly not about substantive issues but rather about the processes themselves.

Let me illustrate how such procedural disputes can arise, with an example stemming from uncertainty about the scope of the parties鈥� contract. Suppose that work on a project has started with no formal signed contract but with an exchange of documents between the parties. As a result there may be uncertainty over whether a contract has been formed and, if one has, what documents it consists of. The claimant wishes to start an adjudication but is unsure whether it can because of uncertainty over whether the contract is 鈥渋n writing鈥� for the purposes of the legislation. If it starts an adjudication it might spend much of its time arguing with the other side over whether the adjudicator has jurisdiction.

The documents could also incorporate an arbitration agreement, which might require the parties to follow that particular process. If there is a debate about whether there is an enforceable arbitration agreement, then starting litigation could prove risky. Any claim in the courts could be met with lengthy applications from the respondent trying to bring it to an end in favour of arbitration. And, whether or not arbitration or litigation applies, the claimant cou