Sir: Tony Bingham's article 17 November, "Sort it out yourself", appears to miss the point of the Protocol for Construction & Civil Engineering Disputes.
Mr Bingham seems to resent any attempt by parties to resolve disputes without the need to go to court (which, as we all know, more often than not means paying for a barrister).
The protocol has in fact been around in draft form for many months and most reputable practitioners have been advising clients to adhere to it during that time.
The point that Mr Bingham misses is that as soon as a party starts proceedings – and in the High Court it costs £500 just to issue a claim form – parties' positions become entrenched; solicitors, barristers and experts become involved, and settlement often becomes difficult until much later on in the case.
Adhering to the protocol has, in my experience, settled cases that would otherwise now be in court, without the need for parties to incur substantial costs. In other cases where this has not happened, at least the issues in dispute have been narrowed. The protocol works well in practice and many clients like the fact that the first thing their lawyer says is "we should try and resolve this" rather than "let's issue a claim form".
Nick Henchie, solicitor, Rowe & Maw, via email.
What are you on about?
Sir: I know I am but a lowly soul in the construction industry, not required to rub shoulders with Department of Trade and Industry reports on a daily basis, but Brian Gegg's analysis of the new government guidance document of the Working Time Regulations made me even more confused than I normally am (15 September, page 86).
What is the point in providing a "clarification" of a subject when your own text is even more confusing than the real thing? Next time when writing please think of me, a simple man, and aim your text accordingly.
Geraint Whalley, Mace, via email.
Furious of Birmingham
Sir: In your feature "The legal league" (27 October, page 64) you reproduced from Chambers Legal Directory a table headed "top legal firms", showing a list of 30 law firms specialising in construction. Chambers organises its lists by region, and that table was in fact the one for London only.
You may be interested to know that Wragge & Co, with eight partners and 22 solicitors doing purely construction work would be fourth in the table on size alone. And having recently, among other things, won a beauty parade against two of the top London firms for what is currently the largest UK construction dispute, we would expect to be high on any list produced on a national basis.
Ian Yule, partner, Wragge & Co, Birmingham.
Sir: I was disturbed to read Tony Bingham's article in Building on 11 August in which he encourages adjudicators to meet or talk to one party in the absence of the other.
Tony rightly points out that the adjudicator must act and be seen to act impartially. To achieve this, contact with a single party must be fully disclosed to the other (which can lead to greater expenditure of time than if the contact was in writing to both parties). With fax and email, there is little to be gained in the way of time by oral rather than written communication.
He also rightly points out that there are adjudicators of poor quality. The worst aspect of his advice is that a less competent adjudicator may think that he (or she) will improve by making direct contact with one party. Please do not treat contact with one party in the absence of the other as a normal course, it should only happen in exceptional circumstances, when the proper course is inappropriate.
Peter D Horne, Maidstone, Kent.
Strong-arming the law
Sir: I read with interest Melinda Parisotti's article, "The Sense of Proportion" on the cost rules introduced by the Woolf reforms (13 October, page 86).
As appears to be the fashion nowadays, she started with a sharp criticism of lawyers. However, leaving that point aside, I think it is important to understand that when applying "proportionality" to a party's costs, the court is only looking to decide what contribution should be paid by the losing party to the winners costs. If, in the court's view, the winning party has been disproportionate in the amount of costs it has spent in winning the case, then the court will take that into account when deciding the amount the losing party should contribute.
However, the issue of proportionality simply does not arise if a party to a piece of litigation does not mind what contribution it receives from the other party or, indeed, does not expect to receive a contribution from the other party. It is perfectly open to a well-resourced defendant to take the cynical attitude towards a claimant with a small but justifiable claim that it can force that claimant to spend huge amounts in legal costs simply to get its case to trial.
Although it is hoped that the court would spot that tactic when coming to assess costs, it would be entirely wrong for the claimant's solicitor not to point out to the claimant the risk that, even if successful, proportionality may mean that it may only recover a tiny proportion of the costs it had incurred. That advice, of course, might well frighten the claimant into not bringing the claim in the first place.
Roderick Gordon, Robert Muckle solicitors, Newcastle upon Tyne.