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Flashcards in Conflict Avoidance Deck (30)
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1
Q

What are the key themes of the conflict avoided and dispute resolution in construction

A

Discusses the different types of alternative dispute resolutions in construction.

2
Q
  1. What is ADR
A

Alternative dispute resolution- alternative to going to court which could be costly

3
Q
  1. What are the different types of ADR
A
Negotiation 
Mediation 
Arbitration 
Independent Expert witness 
Adjudication
4
Q
  1. Who is the planning inspectorate
A

is an executive agency of the Ministry of Housing, Communities and Local Government of the United Kingdom Government with responsibility to make decisions

5
Q
  1. What is arbitration
A

is the most formal of the three alternative procedures. It works very much like litigation (it is normal for parties to be legally represented). It is not necessarily quicker or cheaper than litigation and involves much of the same procedure (the production of statements of case, written witness evidence etc.). The main differences are that it is conducted in private, that the parties are free to agree procedural rules between themselves, and that the tribunal consists of arbitrators chosen (and employed) by the parties themselves. Arbitration has a statutory basis under the Arbitration Act 1996, which makes the decisions of tribunals (known as ‘awards’) enforceable in the courts.

They are subject to very limited rights of appeal (generally only if the tribunal has made a mistake as to the law or there has been a serious procedural irregularity). Arbitration is often provided for in contracts as a binding alternative to litigation. It is otherwise available only if the parties agree.

The arbitrator can award costs which are recoverable, reasonable and proportionate

6
Q
  1. What is Adjudication
A

is a more formal mechanism for dispute resolution that is designed to be quicker and a cheaper than arbitration or litigation. A third party adjudicator, usually a technical expert in the relevant field, decides the (generally factual) issues between the parties. Adjudication has a statutory basis under s.108 of the Housing Grants, Construction and Regeneration Act 1996. The adjudicator’s decision is binding upon the parties and may be the subject of appeal or enforcement in the courts.

Section 108A of the Construction Act 1996 provides that the costs of an adjudication can only be awarded where such a provision had been made in writing.

7
Q
  1. Difference between arbitration and adjudication
A

Arbitration
- Governed by Arbitration Act 1996
- May be used as an appeal process
- Similar to court proceedings
- If parties do not agree that decision is subject to appeal then the decision is binding
- Operates outside of the normal court process by which a third party reaches a decision that is binding on both parties.
- Less formal and happen in private and decisions are binding on the parties. The winning party can apply to the high court for permission to enforce the arbitration award as if it were a court judgment (Arbitration act 1996 s66)
Uses law to come to decision

Adjudication:

  • Generally used in the first instance.
  • Faster- Can take 28 days and the decision is binding to the parties.
  • More expensive due to how long it could take to settle matters
  • Can be overturned by Arbitration or litigation
  • Temporarily binding
8
Q
  1. What are the benefits of ADR
A
Speed
Informality
Greater Opportunity for negotiation
Cost- lest money spent on litigation
Quality of decision making, as made by surveyor rather than judge. 
Confidentiality
9
Q
  1. What is an Expert Witness
A

Expert Witness appointed by two parties

Both parties are bound by decision.

Overriding duty as an expert witness is to the tribunal or court to which the expert evidence is given. This duty overrides any contractual duty to your client

10
Q

Can you describe the procedure for adjudication?

A

35 days in total 7 + 28

  • Notice of adjudication
  • adjudicator appointed within 7 days
  • Referral notice must be issued within 7 days of the notice of adjudication
  • Decision to be made within 28 days of the date of the referral notice.
  • Decision binding, can be challenged in high courts of arbitration.
11
Q

What was driving the desire to bring forward profit on the scheme for your client?

A

Client had a 5 year profit improvement plan and this project fitted its criteria.

12
Q

How did you go about quantifying the likely impact of the community centre on the sales values/saleability of the private units?

A

This was not quantified but was discussed with the Sales Director on the impact it will have on the sales rate.

13
Q

You recommended option C and provider 2 on the basis that they offered the highest bid. What other considerations might have been considered in choosing the preferred bidder?

A

Relationships with existing Reg provider, local requirements i.e. stakeholder residents, financial standing of bidder, payment terms.

14
Q

The payment structure proposed was 10%, 30%, 60%. With 30% at golden brick. What is the significance of Golden Brick?

A

Golden Brick Zero Rates the the VAT for the registered provider by giving them an interest in the land.

15
Q

You concluded that other options were available in terms of international investor or private rented sector company. How would you have assessed the risk profile for your client in these options.?

A

Gone out to tender and assess their bids on an individual basis. Carry out due diligence on accounts via companies house.

16
Q

In your development appraisal you note development and other costs changing from £388k to £417k what made up this difference?

A

Additional legals fees

17
Q

You noted that the LPA wanted a new planning application for the increased density. What benefit would the planning performance agreement bring to the table in terms of their concerns over a S73 application being used? Were there any risks attached to following a PPA route ?

A

Over consultation consultation could present greater issues when looking to move the design/ proposal forward.

Allow the planning authority more influence

18
Q

Option C was a ‘do nothing option’ was that really an option that you could take back to your client? Where might this have been your recommendation? i.e. had the PPA failed to deliver the desired response from the LPA would you have chosen the full new outline application over do nothing?

A

The clients ultimate goal was the bring forward the delivery of homes whilst ensuring profitability.

Doing nothing was always a benchmark when considering the risk of going for a brand new application.

19
Q

You note that you advised Option B would be costly and noted risks ? What were the risks and did you quantify that cost and risk for your client in advising them on the route forward?

A

New requirement for Resident Ballot

This was quantified with the client which included, a new Environmental Impact Assessment, revised s.106 and CIL costs and increased consultant fees

20
Q

Did you use the opportunity of the brief to look at greater density than the 36 units proposed by the Architect?

A

Yes, this was the maximum without impact the daylight/ sunlight requirements.

21
Q

What is the RICS Guidance on conflict avoidance

A

Conflict avoidance and dispute

resolution in construction 2012

22
Q

What is a expert determination ?

A

An independent expert is appointed by two parties to determine a case.

The expert is an expert in the subject matter being determined.

Both parties are bound by the decision.

23
Q

What are the differences between an independent expert and arbitrator

A

An Arbitrator is appointed in a quasi-judicial role whereas an independent expert is appointed by the two parties or the president of the RICS. Both must have expert knowledge of the subject are and parties are bound by the decision in both cases. An arbitrator makes a decision based on the evidence provided at a hearing or in written representation whereas an independent expert is allowed to investigate and use their own evidence in coming to a decision

24
Q

What is the rics dispute resolution ?

A

RICS Dispute Resolution Service (DRS) is the world’s oldest and largest provider of alternative dispute resolution (ADR) services in the land, property and construction industries. Over the last four decades, DRS has appointed dispute resolvers in nearly a quarter of a million cases.

25
Q

What dispute resolution services do you have in your industry.

A

Rics Dispute resolution service

Nhbc dispute resolution

The property Ombudsman

26
Q

What is the difference between arbitration and independent expert

A

Arb- hearing and determine based on facts

Undependent- can look at other evidence to form their own opinion

27
Q

What is the difference between arbitration and independent expert in terms of costs

A

Arbitration- can award costs. Arbitration Act 1996 and only relies on evidence presented. Can also call for correspondence to be turned over by each disputing party.

Independent expert- cant award cost and can rely on its own knowledge and expertise.

28
Q

What are the key facts on an independent expert ?

A

Gets representation from parties and uses own their own information

they are determining a contractual proceeding

Governed by contract

Binding on parties as set out within the contract and no further recourse

Can be sued for negligence

Can not award costs

Both parties appoint or the RICS president

Gives an expert determination.

29
Q

What are the key facts on an Arbitration ?

A

Arbirtation Act 1996

Consider evidence but can order a hearing to consider evidence further and can request discovery of evidence

Legal proceeding and governed by law

Enforceable by court but can be overturned by court of appeal on grounds of misconduct

Cannot be sued for negligence

Can award costs and is confidential

Will need to pass the Chartered Institute of Arbitrators Exams

30
Q

What are the key facts on an Adjudication ?

A

Housing Grants, Construction regeneration Act 1996

must consider reps and uses own knowledge and the jurisdiction afforded by the relevant law

legal proceeding

governed by law

Enforceable but subject to arbitration or litigation

Can be sued for negligence

Can not award costs