Construction & Engineering

Our approach to Construction

At Francis Wilks & Jones our expert team of construction lawyers has the benefit of many years’ experience dealing with the day to day concerns of clients involved in the construction industry.

Experience counts for a lot when dealing with construction claims. Over the years we have acted for developers, banks, asset-based lenders, contractors, employers, subcontractors, surveyors and suppliers at every stage of the construction process. There is little we haven’t seen during this time and it is this experience (combined with our legal knowledge) that we can turn to your benefit.

We know that if a dispute arises, parties to that dispute generally want to resolve the issues before it becomes too entrenched. That is our aim as well. We know that a happy client is one who can get on with not only their business life but also their personal lives, free from unwanted litigation and claims. 

Having said that, at times, formal dispute resolution is unavoidable, but even in those circumstances, it is possible to shorten the process and achieve a good outcome nonetheless. Our specialist team is experienced in all areas of formal dispute resolution including dealing with arbitrations, adjudications, mediations and litigation.  We also advise not only on domestic claims but also international construction & engineering disputes.

Not all construction matters involve a dispute.  Indeed, the role of our non-contentious team in the preparation of building contracts can help avoid disputes arising altogether or ensure that if something does go wrong on site, there are proper contractual mechanisms to resolve those difference.

Our approach is simple – we are here to help whatever your issue.

We are very aware of the effect that the current Covid-19 outbreak is having on businesses in general. If you do have concerns about your company’s financial position at all, or concerns about suppliers of customers who owe you money, you can visit our Company Rescue page and one of our friendly advisers in that team can assist.

Steve Killick and Roxanne Antonio are a formidable team, with considerable construction experience. I have worked on disputes involving high-end domestic, power generation, professional negligence, construction insolvency and commercial construction issues (for contractors and employers alike). Whether it’s an adjudication, expert determination or court proceedings, they have the nouse to guide you through.

They both muck in and get on well with the full range of clients.

With their skill, teamwork and experience I commend them to you.

Charlie Thompson, Barrister, Keating Chambers

Pre-Action Protocol for Construction & Engineering Disputes

The Pre-Action Protocol for Construction and Engineering Disputes (the ‘Pre-Action Protocol”) is something we very much like at Francis Wilks & Jones. Used correctly it can really help parties to a building contract resolve disputes without the claim ending up in some form of litigation.

There is a requirement in most claims that parties to a building contract must try and resolve construction disputes that are likely to be determined by the issue of court proceedings. The Pre-Action Protocol sets out the steps which parties involved in construction and engineering disputes must follow before commencing proceedings in the Technology & Construction Court. There is an obligation on parties to a construction contract to try to settle their differences outside the formal construction litigation arena.

Whether you are a main contractor, sub-contractor, developer, architect, engineer or quantity surveyor, complying with the provisions of the pre-action protocol can reduce your risks of lengthy and expensive court proceedings and increase your chances of successfully settling your construction dispute.

Our friendly construction and engineering team at Francis Wilks & Jones advise on all aspects of compliance with the Pre-Action protocol and any subsequent claim issued at court. Whether a client is commencing or defending a claim, we have the expertise in negotiation to seek settlement where possible.

We understand that budget is important and we will always advise clients whether legal costs are likely to be proportionate at the outset of their case.

Construction Adjudication

Adjudication can be a useful and highly effective fast track procedure for resolving construction disputes. However, you need an expert team to guide you through the process. It is quick from start to finish. It is often referred to in the trade as a “smash and grab” procedure. So it is vital if you are thinking about going down the adjudication route that you plan properly to use it to the maximum effect.

If you are on the receiving end of an adjudication claim it is equally important to take advice. Quick responses are expected, but it is vital to get these responses right as any information or documentation will be reviewed by the Adjudicator as part of his / her decision.

Construction Adjudication is a popular form of construction dispute resolution and does have the big advantage that it is more cost effective and quicker than court proceedings. It applies to parties who have entered into a construction contract under the Housing Grants, Construction & Regeneration Act, 1996 (as amended) and it is noteworthy that the parties cannot contract out of it.

Construction Adjudication is a quick process in comparison to other formal methods of dispute resolution. The adjudicator has 28 days to decide the dispute once it has been referred to him or her. This period can be extended to 42 days by the party who has referred the matter to adjudication, known as the referring party.

Adjudication is a complex area and we advise that any party seeking to commence the construction adjudication process, or parties that have been served with such proceedings, should seek independent legal advice.

Francis Wilks & Jones are experts in handling adjudication proceedings for a wide range of construction clients in relation to defects claims, interim and final accounts, extensions of time and loss and expense claims. We also act for clients in the enforcement and challenge of adjudicator’s decisions (which are temporarily binding subject to any subsequent litigation, arbitration or settlement) heard at the Technology & Construction Court.

We are members of the Adjudication Society, which promotes the resolution of construction disputes by means of adjudication.

Recent work highlights include:

  • Acting in a £1.2 million adjudication arising in relation to a supply and distribution contract for metal building envelope systems
  • Advising an employer on their dispute with a contractor appointed under a JCT Intermediate Building Contract 2011 for basement extension works with a contract sum of £1.6m
  • Advising an employer concerning Technology & Construction Court enforcement proceedings involving an adjudication decision in the sum of £180k and acting in relation o Final Account negotiations.
  • Acting for employers in responding to a series of adjudications including the making of numerous jurisdictional challenges resulting in the successful forcing of resignations by adjudicators.

Arbitration in Construction

Arbitration is a less used form of construction dispute resolution but can still be highly effective to settle a construction claim.  It is a form of alternative dispute resolution commenced under the Arbitration Act, 1996 and the Construction Industry Model Arbitration Rules (CIMAR). It provides parties with an opportunity to resolve disputes more efficiently and less expensively than the traditional methods of construction litigation. The parties agree to refer the dispute to a third party, arbitrator. Arbitration is operated on the basis of material facts, documentation and legal issues.

We are an experienced team of construction and engineering specialists with a wealth of experience in providing guidance on construction arbitration and assisting clients in resolving their disputes. Our advisors have acted on construction projects of all shapes and sizes delivering advice on international and domestic arbitration and acting on technically complex cases.

At Francis Wilks & Jones, we pride ourselves on providing the highest level of technical and commercial advice tailored to our client’s specific circumstances. We aim to find and achieve the most effective solution and are always transparent about the costs involved.

Recent highlights include:

  • Acting for the employer in a long running security for costs dispute in a domestic arbitration under the Construction Industry Model Arbitration Rules
  • Acting for the employer in a Final Account dispute in a domestic arbitration under the Construction Industry Model Arbitration Rules

Construction Litigation claims

Sometimes formal litigation is unavoidable. Whilst unfortunate for the party concerned, we have the team at Francis Wilks & Jones to help you through this process as quickly and cost effectively as possible.

Our construction lawyers regularly deal with all types of construction disputes (that cannot be resolved / settled by alternative dispute resolution) by issuing and defending court proceedings. The claims we advise on can be at the pre-action stage right through to complex and high value trials involving claims commenced at the Technology & Construction Court (“the TCC”). The TCC is a specialist group of courts within the Business and Property Court of the High Court of Justice that handle disputes about buildings, engineering and surveying.

Construction litigation is the process of a judge determining a dispute by way of court proceedings, and whilst this process is more expensive than say Adjudication, our team is experienced in resolving matters as quickly and cheaply as possible.

Our construction and engineering team has significant experience commencing and defending technical, high value and complex proceedings in the TCC for a range of construction clients.

Recent work highlights include:

  • Acting for the homeowner in relation to NHBC Buildmark cover with regard to a £1m claim arising from defective basement works
  • Advising structural concrete subcontractors in a £16m time/cost claim relating to the 2012 Olympic athletes’ village
  • Acting for the industrial lining contractor in a £1.2m delay and disruption claim arising out of works at the Grain LNG plant. Also acted in a subsequent reasonable settlement claim against lining suppliers
  • Acting for the lender in a £2m claim against monitoring surveyors relating to negligent and fraudulent overvaluation

Expert Determination

Expert determination is a form of alternative dispute resolution often suited to technical construction and engineering disputes, i.e. involving contracts under IChemE. A third party, an expert, in a particular subject is appointed to decide the construction dispute. The expert’s decision is binding on the parties unless otherwise agreed by the parties from the outset. Expert determination is a useful tool for those who wish to keep their dispute out of the public eye.

Francis Wilks & Jones are specialists expert determination claims and understand the procedural and legal technicalities in this process. This, combined with our legal expertise means that we are able to successfully run an expert determination claim in a manner best suited for you.

Recent work highlights include:

  • Advising an asset-based lender in connection with General Conditions of Contract for Marine Construction Edition 2, October 2004 (LOGIC)
  • Acting for a renewable energy company in relation to a dispute referred to Expert Determination under IChemE

Non-Contentious Construction Legal Services

Our not contentious team deal with all those construction matters which do not form they typical “construction dispute”. We can provide you with tailored, non-contentious advice to assist your construction business.

We are on hand to assist you with ad hoc advice on all forms of building contracts and drafting and negotiating construction contracts, including JCT, NEC, FIDIC, ICE, including the provision of warranties, parent company guarantees, bank and surety bonds and deeds of novation.

We also offer a fixed fee service for advising surveyors, architects and engineers on proposed professional appointment agreements.

Our expertise and opinion in this specialist construction area have frequently been sought by professional press and by leading publishers. We have written for construction, engineering and legal journals and contributed to a number of Volumes of the (Building and Engineering Contracts) if the Encyclopaedia of Forms and Precedents and contributed to the book entitled Delay Clauses in International Construction Projects published by Kluwer.

Our recent experience of non-contentious construction work includes:

  • Acting for a major lending institution lending £7m on a residential development comprising social and private housing.
  • Acted for the developer of a site in North London developing, on behalf of its tenant, a six storey hotel.
  • Acted for a company developing an industrial warehousing site for multiple long lease tenants to include a frozen fish company and a music distribution company.
  • Acted for various funds which lend on both a straightforward purchase and on a build and purchase basis.
  • Negotiated and reported on construction documentation put forward by the borrower on various developments.
  • Preparing building contracts, professional appointments and warranties, assisting with drafting letters of intent, advising clients in respect of sale and leaseback scenarios involving institutional purchasers and reviewing, drafting and commenting upon various development agreements and agreements for lease.
  • Acted for the developer of a Biowatt Site development to construct a silo that will store manure which will then be turned into pure gas to sell to the energy market using an IChemE Red Book Lump Sum Contract on a Turnkey Basis with a corresponding set of civil engineering works being carried out at the same site under an NEC 3 Option A contract (Priced Contract with Activity Schedule).

Construction Mediation

A mediation is a private and confidential dispute resolution process in which parties voluntarily participate. A neutral mediator is agreed by the parties and unlike a judge, adjudicator or arbitrator; a mediator cannot impose their decision on the parties. The idea is to help the parties reach a settlement that is mutually agreeable to them. The terms of settlement are final and legally binding. Mediations are usually fixed for one or two days.

Construction contracts in the UK must provide for adjudication (whether written or verbally) but there is no requirement for the parties to attempt a mediation in an adjudication. However, there are circumstances when an adjudicator will encourage the parties to meet and engage in a hearing to agree matters wherever possible. Mediation has a big part to play on the resolution of construction disputes and we are aiding more clients collaborate with their opponent in the construction industry to resolve disputes whenever they arise.

In construction litigation, the situation is different as courts encourage parties to make an effort to settle through the pre-action process and case management conferences, without the need to proceed to trial. Many of our clients have successfully avoided the time and cost of litigation through alternative dispute resolution processes.

We have a strong track record in negotiating favourable settlements through conciliation and mediation and always encourage clients to consider all options before resorting to Court. We understand when the right time to settle is and when to move on.

At Francis Wilks & Jones, we have considerable experience in advising on and assisting with both non-contentious and contentious construction legal services. We would be more than happy to discuss any matter with you on an initial no obligation basis. Please contact us for immediate help and expert guidance.