Construction disputes - ‘Tis the season to be jolly?

Happy adjudication season! The traditional advent window for launching adjudications is well and truly upon us and it’s safe to say that the pandemic doesn’t seem to be impacting on the number of disputes running this year.

So if the pandemic hasn’t postponed the season of goodwill, how has it affected disputes more generally? In our experience, it seems that the answer is “it depends”.

We are yet to see the anticipated influx of formal disputes relating to time and money claims arising out of the nationwide shutdown and subsequent changes to working practices, although we can see the claims are already coming down the path with a few indications of creative interpretations of contracts in relation to these claims.

If the last nine months have been anything to go by, the construction dispute scene seems to be as busy as ever, and the pandemic doesn’t seem to have slowed down the number of new disputes. However, where we have seen changes is in the way disputes are conducted.

For those of us involved in adjudication, there has been little change. Prior to the pandemic, when full hearings in adjudications were required (which was not actually that often) this involved having multiple parties in the same room. Since that hasn’t been possible due to the pandemic, everything has shifted online – and not just in adjudication but in mediation, litigation and arbitration as well.

A whole industry is now established around the delivery of the virtual hearing. The key to success of these virtual hearings seems to be finding the right platform to host the hearing and to manage the electronic documents.

There are some differences in functionality required, depending on the forum.

So, for example, in mediation we are looking for the same functionality as we would have in an in-person hearing – such as breakout rooms for confidential discussions, or in court/arbitration we need the ability to communicate with counsel during hearings without disturbing the hearing (think post-it notes being replaced with Whatsapp groups).

With adjudication, arbitration and mediation we have the luxury of choice of various excellent platforms and document hosts.

With litigation we are confined to the court’s chosen platform, which, while not as sophisticated as other options, is perfectly adequate to allow the wheels of justice to keep turning.

But do the pros of virtual hearings outweigh the cons? While there are obvious advantages of virtual hearings (such as the ease with which hearings can be arranged and elimination of travel time which always eats in to availability) there are also some inherent disadvantages.

In a virtual world you are reliant on the technology available to each party (and their internet provider), the loss of immediacy of impact of cross examination and the lack of opportunity for parties to meet on steps of court to resolve matters.

So against that backdrop, are virtual hearings the future? The general consensus seems to be that for hearings confined to points of law, then yes, the virtual hearing provides an effective and efficient method of disposal and there is no reason why these shouldn’t continue as the norm, post pandemic.

However when it comes to witnesses, the physical hearing still delivers more than the virtual and it’s hard to imagine that the physical hearing for witness evidence won’t make a comeback post pandemic.

It seems there will be an inevitable increase in disputes over the coming months which relate to time and money claims as a direct result of the pandemic.

When that happens, we’ll bring you the next instalment of the saga!

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