International Construction Law Review
DEVELOPMENTS IN THE RESOLUTION OF CONSTRUCTION CONTRACT DISPUTES IN THE UK AND IRELAND
PROFESSOR ANTHONY LAVERS
Counsel, White & Case LLP London1LITIGATION
Historically, the English court system had significant disadvantages for resolving construction disputes. Litigation took too much time, cost too much money, was too procedurally complex, and often exposed the limitations of the judiciary, who lacked experience in construction matters. Established by the Judicature Act 1873, the Official Referees were appointed for the resolution of those disputes, as the preferred venue for the hearing of scientific or technical issues. It was rare for a construction case to be heard by a High Court judge, and so reference to decisions of the High Court was infrequent; it was the Official Referees who decided the law of construction, despite often having limited experience in the field.
In the beginning, there were only three Official Referees, and the pace of business in their courts was relatively sedate. But the shape of things to come was foreshadowed in Fox v Fox, which required 36 days of hearings in 1953, and was at the time the longest in the history of the Official Referees. By the 1980s, and despite a doubling of the number of Official Referees and the appointment of 16 Recorders, the situation had changed dramatically. With the propensity of construction disputes to involve multiple parties and expert witnesses, together with the habit of lengthy cross-examination and re-examination, the problems of the construction of the Rhyl District General Hospital were heard over 126 days of trial in Holland Hannen and Cubitts (Northern) Ltd v Welsh Health Technical Services Organisation,2 followed by a hearing in the Court of Appeal. Several years later, came McAlpine Humberoak Ltd v McDermott International Inc (No 1),3 a steelwork subcontract dispute from the North Sea oil industry, which took 97 days to be heard, and was again followed by a hearing in the Court of Appeal.
1 Professor Lavers is also part-time Director of Research and Professional Development at Keating Chambers. He has been a member of Council of the Society of Construction Law since 1996 and was Chairman (2004-2006). This article is a version of a paper which he gave at the Annual Conference of the European Society of Construction Law in Milan on 10 October 2014 which was first published in Tijdschrift voor Bouwrecht, and is reproduced by kind permission of its editors.
2 (1985) 35 BLR 1.
3 (1992) 58 BLR 1.
Pt 2] Developments in the Resolution of Construction
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