Top Consulting - The Process

The Process

The Pre-Action usually takes place at the site in the form of a Conclave with only the Facilitator and Experts in attendance.

The Experts work through all technical items in the Scott Schedule listed as defective or in dispute, looking for consensus on the defects and an agreement on cost. Things said or done at a conclave are not admissible as evidence in the hearing unless all parties agree.

The use of a skilled Facilitator and independent Experts, with a professional approach, appear to be paramount in the process.

Developing a Scott Schedule that clearly defines claimed defects, relationship to the contract, and the breakdown of costs form the basis of a successful negotiation and a cost effective conclusion to the dispute.

Usually there are several experts involved who are briefed by different parties. It is common for one or more of the Experts to produce some documents, photographs, etc. during the conclave, which had not been previously sighted by an individual expert.

This additional information often leads to an individual Expert revising their original opinion. A critical issue in any conclave is the establishment of questions that need to be addressed by Experts.

Whilst these questions are often suggested/determined by legal representatives, a conclave is usually much more effective if various questions are drafted with assistance from the participating Experts.

It is generally found that:
1. Conclaves are more likely to produce a sound technical outcome if the various questions are reviewed/commented on by respective Experts (building or engineering consultants), prior to a conclave.
2. Careful preparation for a conclave, such as in-house discussions as to the issues in dispute, could be of considerable assistance to the Expert attending a conclave. Conversely, if the preparation is not done, then an Expert may not be able to appropriately respond to detailed questioning by other participating Experts or the Facilitator.
3. It is more efficient/economic for technical issues to be resolved during a conclave process, than for these technical issues being resolved by the more lengthy and costly Court process.

Results to date, based on current conclave experience, have been very successful.

Over 80% of the issues reach consensus on outstanding defects and a cost for their rectification with approximately 60% of post-conclave matters resulting in out-of-Court settlements.

The use of a skilled Facilitator and an independent Expert, with a professional approach, are central to this process.

Developing a Scott Schedule that clearly defines defects, relationship to the contract, and breakdown of costs forms the basis for successful post-conclave negotiations.

The Outcome

All agreements (or disagreements) reached by the Experts during the Pre-Action conclave are signed by the Experts at the conclusion of the process.

The Facilitator prepares a brief report (being a summary of signed Expert conclave records) on the outcomes from the Pre-Action conclave called a ‘Memorandum of Outcome’. This includes an agreed list of Scott Schedule items and a notation as to any matters still in dispute.

The Experts who attended the conclave will sign the Memorandum of Outcome and a revised joint Scott Schedule reflecting the positions reached at the Pre-Action conclave as:
• Liability, defect, method of rectification and quantum accepted;
• Liability and defect accepted, method of rectification and quantum disputed;
• Method of rectification and quantum accepted, defect and liability disputed; or
• Defect, method of rectification and quantum accepted and liability disputed.

Roles, responsibilities and qualifications

The Facilitators role is to conduct discussions between the experts and test the veracity/quality of presented evidence.

The Facilitator’s background includes:
• Extensive experience in the construction industry;
• Appropriate technical knowledge and qualifications;
• Qualifications in mediation, conciliation, contractual issues and construction procurement process;
• An understanding of construction law including the Home Building Act.

The Experts role is to assist with the resolution of the dispute. His/her background must include:
• Extensive experience in the construction industry;
• Extensive knowledge of the Building Code of Australia (BCA) and relevant Australian Standards;
• Appropriate technical qualifications in relation to a field of expertise necessary to adequately assess and to consider relevant technical issues in dispute;
• An ability to resolve the matter at hand (without acting as an advocate for a party involved in litigation)

Clients now have an added mechanism for dispute resolution within the Construction Industry. If you are facing litigation, the Court process or major disputes regarding building matters, look toward Expert Conclaves as your least troubling, most powerful and cost beneficial tool.

References

NCAT Consumer and Commercial Division Procedural Direction 4, 1 January 2014, Consumer and Commercial Division, New South Wales Government, August.

Ministry of Justice (2013) Pre-Action Protocol for Construction and Engineering Disputes , UK Government,
http://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_ced
(accessed 12/8/2013).

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