JCT ops for litigation

The Joint Contracts Tribunal, the organisation responsible for producing construction contracts, will publish a contract document that will change procedures in cases where adjudication fails to result in a resolution of a dispute. Under the new document the default next step will be litigation instead of arbitration. Arbitration will still be possible, but it will require the disputing parties to actively choose to follow this course.

A senior JCT source denied the move was an attempt to change the way the construction industry works. He said it reflected common practice, which was to opt for litigation over arbitration.

Tony Bingham, barrister and arbitrator, said the litigation route was not always the most appropriate. He said litigation was suitable in circumstances where the disputing parties would benefit from the resources of the court and “all the judicial weight useful for certain disputes”, such as cases centring on contractual details.

However, he said arbitration remained the best option in cases where expertise in construction was required of the person settling the dispute, such as disputes over technical aspects of building work.

Bingham went on to advocate a new approach to arbitration, by which the arbitrator would investigate disputes.

He said: “Rather than simply listening to the arguments and choosing between them, the arbitrator could carry out an enquiry and get closer to what has actually gone on.”

The parties would not have the expense of hiring a team of lawyers under this approach, although Bingham admitted it would take about twice as long for the dispute to be resolved. In line with this, the arbitrator could command double the fees.