Pre-Action in Disputes and Expert Conclaves

Have yo ever thought that steps toward Pre-action and Expert Conclaves may be the most cost effective way to deal with complex and troubling building disputes?

When a Client is faced with a legal action, he/she often seek advice from a legal practitioner with a view to quickly initiating litigation against the offending party.

Rushing into litigation before you have received objective advice in relation to the most likely cause of the alleged damage is likely to be a costly mistake.

Legal practitioners commonly suggest that an appropriate ‘expert report’ be obtained to support a litigation. Such an approach can prove expensive, with the cost of litigation and an expert advice often exceeding the damage suffered. Further, because the ‘expert report’ is prepared to ‘support’ the litigation, the report may be fundamentally flawed and contradicted by other experts.

We strongly suggest that it is preferable to obtain expert engineering advice in advance of the commencement of any formal litigation process. This is now referred to as Pre Action in Disputes.

Pre-Action in disputes represents a fundamental philosophical shift in the way a dispute may be handled in the Construction Industry. It enables parties to fully investigate the merits of their claims and defences, as a condition precedent to litigation.

Faced with a prospect of litigation, it is essential to consider the possibility of an early resolution to a building dispute in order to:
1. Reduce litigation, cost & wasted time; and
2. Safe-guard a relationship with his/her Client and preserve future relationships.

Pre-action in disputes ensures that all reasonable steps are taken prior to litigation so as to:
• Avoid litigation by agreeing on a settlement acceptable to all parties before commencement of proceedings;
• Shorten and support the management of proceedings where litigation cannot be avoided; and
• Reduce issues in dispute in order to facilitate efficient and cost effective litigation.

Referring Matters for Pre-Action

A building matter may be referred for pre-action when:
• Multiple items are in dispute that may be possible to resolve;
• Both parties have briefed experts;
• Experts Reports and Scott Schedules have been exchanged;
• Pre-Action is considered to be cost-effective;
• The matter is likely to proceed to fully blown litigation if matters are not resolved.

If you would like to discover more about this process click here


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