The Danieli debate

Boost to morale

I’d like to thank everyone who has responded to my article in Building (29 April, page 40) – the help and support has been a tremendous boost to Rosie, my wife, and myself.

Since the article appeared I have received calls, emails and letters of support from friends, professional contacts and complete strangers. We now realise that we are not alone and that thousands of builders have been in the same position. Our hopes have been raised.

On a practical level, we have been contacted by two companies offering to take on our claim on a no win-no fee basis. Out of all the options this seems to be the best for us. So far we have arranged one meeting in June to explore our future attempts at resolutions.

However, I still plan to retire later this year at the age of 62. It’s the right decision for us, but it has been precipitated by the stress we have been through. In my 42 years in construction I have never been out of work – it’s a fantastic industry to be in and it has broken my heart to think that I can’t go on.

I’m not going to give up on construction altogether though, I plan to take an active part in lobbying government over issues that affect operatives, employers and employees.

Alan Danieli, AJ Danieli & Sons

The Danieli debate

Try the small claims court

Just a thought, but couldn’t Alan Danieli bill them for an amount within the limits of the small claims court? At least he would get a claims court judgment against them. Would there be anything to stop him continuing to bill in batches to the full amount?

Jayne Hepworth, architect, Loughborough

Lawyers must offer real value

I was disappointed, but not surprised, to read that Alan Danieli has been advised that he will not be able to sustain the legal costs required to recover sums due. I believe that it is possible, based on the account in his column, to recover a substantial sum net of costs and enough money after fees to make the endeavour more than worthwhile, despite the manifest failings of the dispute resolution routes open to Mr Danieli. One of the ways that this could be done is on the basis of a no win-no fee deal in adjudication.

Until there are statutory reforms to dispute resolution procedures to take account of relatively small value disputes, it is up to those that purport to offer legal advice, to do so in a way that offers value for money results. It is only by offering value for money that lawyers will be able to shed their “Shylock” image.

Morwenna Crichton, barrister, on behalf of Contract & Construction Consultants (Southern)

How to access to bank accounts

I believe there is something called a “garnishee order” that your solicitor can serve on the bank account of the person who owes you money. This might be worth a try.

Guy Parks, project Manager, Building & Estates, The British Museum

Upfront payment

It occurs to me that in this instantaneous world where we all expect immediate gratification/ information/service it is perhaps time that this part of the construction industry adopted more of a “retail” philosophy. The public would not dream of taking goods and services from a shop without paying in advance so it is surely time that one-off clients were dealt with in a similar fashion.

Many builders do of course charge for materials in advance of delivery on small projects, but this still exposes the labour element to abuse. It ought to be possible to adapt a standard form of contract so that clients pay for goods and services in part or completely in advance.

Simon Pole, Pole Associates

We need protection

In this business all parties seem to get some kind of warped, sadistic kick out of screwing each other. Big firms screw little firms, clients screw builders and builders screw clients and there is precious little integrity in any of it.

Some people make a roaring success out of their work in this industry but thousands of others do not. Some may not be properly equipped to succeed and, in my experience, anyone who wants to be absolutely fair and honest will find few takers because they will think he has some scam going on.

Perhaps also there are other vested interests at work perpetuating the status quo – the lawyers who charge vast sums to tell the likes of Alan Danieli how hopeless the law is at protecting them.

If a customer fails to meet his payments on any other goods, those goods will be repossessed. In construction that process is illegal – besides, what good is a house extension to anyone else, even if it could be taken away?

The only way Mr Danieli is going to be able to afford the law is by first making sure that it is within his financial reach and that it will protect him when needed. That means the lawyers’ and the builders’ rates will need to be considerably more compatible.

William Matley

Take preventative action

There are steps that Mr Danieli could have taken from a preventative point of view that may have helped him deal with domestic clients and avoided the need for him to close down his business:

• Where the builder will not have a statutory right to adjudicate, ask a lawyer to draw up a simple contract which should contain basic terms including a contractual right to adjudicate. In my experience this can be achieved at reasonable cost and run to less than six pages. For claims above £100k, the JCT Minor Works contract can be used with minimal amendments. No contract will prevent disputes arising, but the ability to credibly threaten adjudication often brings about a dialogue with an errant client at the very least.
• Think about offering a discount to the client in lieu of a retention.
• Have clear and unambiguous terms for payment. When payment is not received take immediate action and follow through quickly with measured use of a solicitor and QS.
• Don’t worry about upsetting the commercial relationship. Clients higher up the construction food chain will always bring this into play but it is really an unsubtle code for commercial blackmail. I have often found that these clients will actually respect your business more (though they won’t admit it to you) provided your claims are legitimate and you behave professionally in your dealings with them. Desperate builders, there is help out there.