Everybody’s at it!  Seminars about the economy, seminars about recovering money, seminars about helping you in the credit crunch, but don’t be fooled.  Why do people do these things at times like this?  It’s to boost their own business because they are probably hurting as well!

have been examining the market place and what’s going on.  It is interesting to see that there is a move away from certain types of litigation and I want this article to make you to think about what you should be doing in
the credit crunch.  There are a lot of good business magazines out there, this being one of them.  You should read them and see what else can be done to assist you in promoting your company.  Certainly going legal doesn’t.  However, the major trend at the moment is away from adjudication.  If you recall way back when adjudication started I predicted that it would have a honeymoon period and eventually people would wish to go back to something much more
productive and final.  With that in mind, and with the tinkering about that people are playing with at the
Construction Contracts Order, its time to remember that arbitration and litigation are in fact final.  But more importantly, they have full discovery available to them and the winner normally succeeds on costs.  That is a positive thing with respect to cash flow if you have a sustainable claim.

At adjudication in many instances you don’t get your money back!  That’s a tad unfair, but what about timescale?
Well, the modern arbitrator can handle cases if he/she is so deposed to do so within100 days.  That will
include discovery.  They can penalise people on costs but more importantly, and I think favourably in today’s environment, they can cap costs.  In other words you can spend what you like on your case but you will only recover the amount of £X and that does concentrate the mind.  Then we have the law and I believe the law in Northern Ireland is changing.
Judges are becoming proactive.  They are case managing.  Our Commercial Judge is very involved in seeing cases move forward.  For the first time (and we congratulate John Larkin QC), we will have our own Attorney General (in 25 years!).  He will oversee policies and ensure fair play to all.  That is a good thing.  So don’t think that when someone comes with adjudication it’s the end of the world, it’s not the best fix.

However, there is a simpler way and I think it is something that you do without even realising it and that’s
mediation (or conciliation in the Republic of Ireland).  The parties sit down with an independent person who basically facilitates the potential of an agreement.  That agreement can be binding but certainly it can be enforceable.  The difference is, it is a commercial decision.  Whilst the parties will put forward their stated position, nevertheless within that they will actually make a commercial deal not related directly to the figures or the claim.  It can be win-win, parties can go on trading.  You should examine these things closely if you have a problem.  Furthermore, and more than ever, records are so important.  We act for clients as you are well aware and more and more banks are contacting us about the status of
claims.  They want a report from us as to how we see the claim panning out and giving them a complete risk analysis.  They want comfort.  How you choose your consultant to do that is very simple, if they are saying everything you want to hear and they are leading you along bumping up a large claim, that’s not the consultant you want.

I have been speaking to a number of our leading clients recently and the thread that comes through all of it is, they
want honesty.  They want honesty at day one and if there claim isn’t up to test they need to be told.  I have had experience of going in after clients have racked up enormous fees and said “I don’t think you have got a case” or “the case is not as stated”.  So be careful.  Seek good advice.  Watch out for the large fees, if companies are double charging you, two people at every meeting etc, there is a reason for that.  Simple, they are not busy.  If you are dealing with a Principal, unless there is a PA or secretary there, you don’t need two or more consultants sitting around you.  Deal with a consultant at a time.  If they are a multi disciplinary practice acting for you, you may have a multi briefing at the start but each individual will deal with their own aspect of their case and there shouldn’t be major double feeing.  That happens with legal consultants also.  If you have a senior that’s all you need.

Fee certainty can be agreed.  Clients are now looking for this.  They are looking to see what it will cost them to get to a particular point.  Don’t be afraid to ask, it depends on the complexity of the case but I think you really need to nail it down at the time of negotiation.  Hourly rates are an endless road as you don’t know the certainty of it at the end of the day and furthermore, in respect of the size of the case, fees must be matched to give value for money.  Remember at sometime, they will and can be taxed by a judge or an arbitrator and they might not like the method of fee charging and as a result you may be hurt on the recovery.  So set your stall out early, the credit crunch isn’t all that it is cracked up to be and you shouldn’t have fear, you should have simple good business acumen and a method of dealing with others operating in the same difficult backdrop.

Finally, try to avoid disputes. Try to sit down with your client as early as possible when the problems are
occurring.  Remember there is nothing stopping you talking to your client.  I find often that the disputes are caused with what I call the ‘middle management syndrome’, i.e. the contracts administrator and the middle management in the contractor’s organisation.  You should have a system in place that immediately a dispute arises there is a trigger to a dispute board whereby the directors, the senior people of each company, will either settle it or they will very soon know that the matter is an effective dispute and they are going to ‘war’.  In other words keep the decisions to the decision makers!