SHOULD I GO LEGAL?

Disputes that have not been resolved amicably might need to be decided by a judge or an alternative form of dispute resolution.

Embarking on legal proceedings is not for the faint-hearted — and court proceedings are expensive:

● The courts encourage parties to follow steps under the ‘pre-action protocol’. A failure to comply with the protocol can lead to sanctions from the court — typically in the form of a less-favourable order on legal costs. Compliance with the relevant protocol is therefore very important before issuing a claim.

● If the value of the dispute is up to £10,000. The claim will be allocated to the small claims court where the court fee for getting the claim underway is no more than £455 with procedures designed for parties to represent themselves. A small claim can take between six weeks (if it is undefended) to six months (if a hearing is needed) to resolve.

● Your contract might include provision for disputes to be resolved by adjudication. The dispute is decided by an adjudicator whose decision is binding on the parties until the dispute is finally determined by legal proceedings. There is no limit on the value of a dispute that can be referred to adjudication but you will need a clause in your contract to invoke it — or agree with your builder that the dispute can be decided this way. An adjudicator is required to reach a decision in 28 days from the date of referral of the dispute.

Court proceedings for large and complex claims cost more to resolve. They can take more than a year to come to trial and legal costs can become disproportionate, with complex issues requiring expert witnesses, evidence from witnesses and many documents as well as the cost of representation by solicitors and barristers.

Court proceedings come with the risk of losing and paying your opponent’s costs, not recovering your costs even if you win, or not recovering anything at all if your opponent is insolvent.