In my view concrete steps to address the challenge of finding a time and cost effective means of fairly resolving domestic property renovation building contract disputes are required. Based on what is now my relatively longstanding experience, both as advocate and as a TCC Circuit Judge, in case managing and trying such cases, I would suggest that one option well worth considering in such cases would be for directions to be given at the first CCMC[1] along the following lines: (a) disclosure limited to documents relied upon and to known adverse documents; (b) a single joint expert building surveyor to be instructed in all cases[2] to address all items in issue, both liability and valuation, with questions to the expert strictly for the purposes of clarification only; (c) a stay for mediation on receipt of the report and questions. If the parties are not willing to mediate and the judge does not consider it appropriate to order mediation, then there should be an order for compulsory early neutral evaluation before another TCC Judge.
If no settlement is achieved then there should be further directions as follows: (d) witness statements, limited to matters remaining in dispute, strictly complying with PD57AC and limited in length and/or number ; (e) a trial, which should not normally exceed 1 day in length, at which: (i) each party would have produced in advance detailed written opening submissions; (ii) no oral openings would be permitted; (iii) no more than 1 hour each for cross examination of each party’s witnesses on their key evidence would be permitted; (iv) the single joint expert would attend remotely to answer questions from the judge and parties for no more than 1 hour in total; (v) there should be 1 hour each for oral closing submissions, followed by: (f) a judgment, orally or in writing at the judge’s discretion, which would be as summary as the trial process. To make the trial workable and fair the judge would probably require a half day pre-reading time and up to a full day judgment time, ideally the day before and the day after the trial respectively, with the latter being used either to produce a written judgment or to give an oral judgment in the afternoon following a morning of judgment preparation.
In terms of costs budgeting, the approved costs going forwards should not normally exceed pounds 25,000 per party, broken down as to pounds 2,500 for disclosure; pounds 5,000 for expert evidence (which would include the party’s half share of the expert’s fee); pounds 5,000 for mediation (including a half share of the mediator’s fee); pounds 2,500 for witness statements; and pounds 10,000 for trial preparation, trial and post judgment matters.
Judges:
Before
His Honour Judge Stephen Davies
Citations:
[2022] EWHC 29 (TCC)
Links:
Jurisdiction:
England and Wales
Construction
Updated: 29 March 2022; Ref: scu.671725