Litigation is the process of taking legal action and is the traditional form of dispute resolution, familiar to most people because of the UK court system which facilitates the civil process in the County Court and High Court.
What is construction litigation?
Litigation has an often-deserved reputation for being an expensive and long-winded process. However, for large and complex cases and enforcement of adjudicator’s decisions, the construction industry has a specialist court for construction-related cases called the Technology and Construction Court (TCC), with locations in major cities including Birmingham, Manchester and London. The TCC has a more streamlined system than other courts and operates its own specialist rules and procedures, designed to reduce delays and costs through effective case management.
The litigation process
The process begins when the court receives a claim form filed by the claimant. The court then seals the claim form. Once sealed, the claim must be served on the defendant by either the court or the claimant within a strict timeframe, as stated by Part 7 of the Civil Procedure Rules.
The claim form must contain, or be accompanied by the particulars of the claim. Both the claim form and particulars of claim are crucial documents that must set out a clear summary of the basic facts (not the evidence), of the claim against the defendant. Failure to do this can result in the defendant exercising its right to strike out the claim.
There is a fee for filing a claim form and the amount depends on the value and nature of the claim. Fees also apply if the defendant issues a counter claim (which is different to a defence).
When the defendant is served, it must state whether the claim is accepted or it intends to defend the whole or in part. Again, this must be done within a prescribed timeframe within which the court is notified of the defendant’s position. The defendant must serve any defence (including any counter claim), within 28 days from the deemed date of service of the claim form.
The defence is also a critical document in the proceedings, not least because if the defence is regarded as ‘weak’, with little or no prospect of success, the claimant can make an application to the court for summary judgement. Any failure to either acknowledge service of the claim form or file a defence will allow the claimant to enter judgement in default against the defendant.
Advantages of litigation
- There is a dedicated court that handles large or complex construction cases called the Technology and Construction Court.
- Claimants and defendants both have a clear process to engage with, with little room for doubt as to timeframes and what the process involves.
- Cases are allocated to one of three tracks according to the sum involved and to a lesser degree, time and complexity, as follows:
- Small Claims Track – usually for claims under £10,000
- Fast Track – normally for claims above £10,000 but below £25,000
- Multi Track – usually for claims of above £25, 000
Is litigation the right choice for me?
The decision to pursue litigation is not one that should be made lightly. These days adjudication, mediation and arbitration are all very popular methods of resolving disputes. However, despite their tendency to be cheaper and less time-consuming, they are not always the right choice.
Before considering litigation, it’s important to establish whether there is an arbitration clause in the contract between the parties in dispute. If so, arbitration must be pursued in order to resolve the dispute – unless both parties agree otherwise.
Other dispute methods may be quicker and cheaper but they often involve compromise, so if you strongly believe that compromise is not a fair option, litigation may be the best option. Equally, if the case depends on a point of law more than a technical issue, the involvement of an experienced judge in the Technology and Construction Court may be beneficial.
If you are undecided whether or not litigation is the best option for you, please get in touch with Michael Gerard Solicitors who will be able to advise you on the best dispute resolution options for your circumstances.
