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In today’s economic climate, more and more people are opting to undertake home improvements rather than move house. Often, people will opt to employ builders, hoping to ensure the work is done well. This will involve entering into a contract. Contracts are often in writing but many builders undertake work based on an oral agreement.
Unfortunately, problems do arise. House owners may find that the final bill is far greater than first anticipated due to a variety of extras being added or the job overrunning. On the other hand, builders frequently find they are instructed to undertake a greater amount of work than originally quoted for, but the client then disputing payment of the increased cost.
This leads to negotiations over the final bill becoming fraught and jobs left unfinished or builders remain unpaid. This is where solicitors can help work out what the terms of the agreement were, who is owed what and how to progress the current situation.
There are a number of ways we can do this and the involvement of solicitors does not mean the matter will result in Court proceedings:
Negotiation - many disputes can be easily rectified via negotiation between the parties. We can enter into such negotiation with the other side on your behalf and advise you on your legal position and your prospect of success throughout. This is an efficient and cost effective way to solve the problem.
Mediation - a form of alternative dispute resolution, a far less formal and often cost effective alternative to the Court process. We will support and advise you throughout the process. The appointed mediator will facilitate discussions between the parties. The process is private and confidential and aims to help both parties reach a compromise or at least to narrow the issues between them. Compromises must be made for it to work and it will not be effective if either party is set, with no room for manoeuvre. Mediation is a quicker and much cheaper route than the Court process but there is no guarantee of settlement. If a solution is reached, both parties would sign a document at the end which would be a binding document.
Lord Justice Jackson’s comments on negotiation and mediation in his recent review of Civil Litigation Costs. He states ‘the two principle forms of ADR (alternative dispute resolution) are conventional negotiation and mediation. ADR has proved effective in resolving construction disputes of all sizes. In relation to small building disputes, however, it is particularly important to pursue mediation, in the event that conventional negotiation fails’.
The significance is well illustrated in the recent case of Rolf v De Guerin [2011]. This case concerned a building contract between a homeowner and a landlord. The works did not go smoothly, which led to a breakdown in the contract. Despite offers of negotiation and settlement by the homeowner, the landlord refused to enter such discussion. Lord Justice Rix made clear that parties should respond to reasonable offers to mediate or settle and the parties conduct can be taken into account in an award of costs. The party’s refusal in this case to enter into negotiation/ mediation had a direct effect on the costs order in this case. The moral of this story is that a party fails or refuses to negotiate at his/her peril. Even if the case is “won” he or she can be penalized for his/her obstinacy in costs.
Court proceedings should be viewed as a last resort and our experienced litigation solicitors have a wealth of experience in this area. Should the opposing party be unwilling to negotiate, we can take positive steps on your behalf through the Courts, or rigorously defend you position in claims made against you.
A few minutes advice from the outset from Rachel Stewart, one of our experienced litigation solicitors can potentially save you thousands of pounds later on. Rachel will be happy to meet with you as soon as a potential dispute appears. She will quote you a fixed fee for that initial meeting which we will be bound by and means you know precisely where you stand, fees-wise with us, but more importantly Rachel will ensure you know your legal rights, legal strengths and weaknesses of your case before commencing to negotiate with your builder. We offer a similar process for builder clients (although obviously never in the same case!).
To set up a fixed fee interview please contact Rachel Stewart ras@hughes-paddison.co.uk or telephone Rachel or her secretary on 01242 574244.