Trends in Construction Dispute Resolution Essay

The facts of Malins v SRA 2017 are as follows: in 2013, the appellant provided his legal service to his client, had filed for After the Event Insurance policy to help cover against adverse costs. In 2012, the law changed under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and came into force on 1st April 2013 which stated under section 46 that claims after this date would no longer be entitled to recover the costs. However, you would only be able to recover such costs if a notice in form N251 had been given to the opposite party and filed at court. Although the appellant thought that he had given the required notice on the 19th of Match 2013, the other side affirmed during mediation, in January 2014, that they had not received any notice. Also, he was informed by his assistant that he failed to file with the court too. This lead the appellant to create a letter and a form N251 with a later date which he sent it to the other party and then subsequently relied on it during the settlement.

These guidelines and procedures help to “provide for orderly conduct of legal processes and ensure the rights of the litigants. (Schuetz; pg. 37)”. In the case of Reilly Winter versus TBT Innovative trial, held in court on Saturday, February 11, 2017. The court engages the service of the jury to decide on the case and the court is presided over by judges, even though it is a civil case. This is provided by the seventh amendment, which allows the use of juries in civil cases but does not mandate it.

In the Common Law, if any change is made it would prompt dismissal or counter

[There are several factors that contribute to the excess numbers of cases in the court system today. One of the influences is the Supreme Court case of Gideon v. Wainwright, 372 U.S. 335, a landmark case, which ruled that under the Fourteenth Amendment states will provide counsel to individuals charged with a crime who cannot afford to pay for an attorney themselves. Prior to this addition, Judges decided cases and the cases moved much faster through the system. However, the addition of lawyers to each case and the need for trials grew, in turn the speed of the system slowed.

Alternative dispute resolution is a highly effective instrument in resolving conflict and attaining justice for individuals in relation to resource efficiency and timeliness through utilising mediation, conciliation and arbitration. Mediation is an exceptionally efficacious informal process of dispute resolution, usually confidential and conducted with the assistance of an

The use of pragmatism has become more popular in courts today because it can conform to the many changes

Legislation and court procedures have demonstrated recently how ADR is important in resolving disputes. ‘The commercial Court released a practice statement in 1993, showing that it wished to encourage ADR, and followed this in 1996 with a further direction directing judges to consider whether a case is suitable for ADR at its outset, and to invite the parties to attempt a neutral non-court settlement of their disputes’. The pre-action protocols state that parties should take reasonable steps to apply the directions given in order to make a claim. Failure to apply these pre-action measures may result in not being paid the stipulated costs at the end of the case. ‘Rule 1.4(2)(e) of the CPR states that the court must encourage the parties

A potential advantage of ADR is that because parties voluntarily involve themselves in the process, and in most cases agree to the outcome there is rarely a difficulty with enforcement. Enforcement is a much greater potential problem of litigation where a party who has lost in court may be unwilling to meet judgement. At the same time, individuals have pointed to the advantages of the type of settlement which could be achieved by ADR over the costly and divisive nature of litigation.

Well-organized structure. There is clear defined stages and the fixed timetable to follow during the dispute settlement procedure. This dispute settlement system indeed become more effective than that of GATT 1947 (Food Fight n.d.), which is capable of dealing with complicated cases.

Alternative dispute resolution is a large, diverse, and highly innovative field. However, in Australia it remains largely under utilised and often idiosyncratic. Alternative dispute resolution is commonly understood as any method of resolving disputes outside of traditional adjudication. Some well known methods of alternative dispute resolution include mediation, arbitration, and negotiation. Online dispute resolution is a newer, less well known method of alternate dispute resolution. Over the last decade in Australia, online dispute resolution has grown in popularity.

Eggelston, B (1997). Publisher; Blackwell Publishing, Place of Publish; Oxford, Liquidated damages and extension of time in construction contracts, 2nd ed. p252.

The impact of Williams v Roffey Bros & Nicholls (Contractors) Ltd [1989] EWCA Civ 5 on the doctrine of consideration.

If both parties fail to reach a resolution internally, a settlement can still be reached prior to the case reaching a tribunal. ACAS can play a significant role in this. A new set of arrangements was introduced in 2014 that gives ACAS conciliation officers a much more pertinent role. In a bid to encourage the parties reach out-of-court settlements and so reduce the costs of running the tribunal system, from 1 Apr 2014 new pre-claim

In the statement, it is mentioned that the great strength of the common law lies in its capacity to develop to meet the changing needs and circumstances of the society in which it functions. A case to illustrate this point would be W v Registrar of Marriages [2013] HKCFA 39 (CFA).

With all of these acts and statutes being passed, it seemed as though arbitration was the way to go. But as more and more agreements to arbitrate future disputes were executed, other nonarbitral forms of alternative dispute resolution such as mediation and neutral fact-finding became common.