If your recessed budget doesn’t stretch to legal fees and you decide to represent yourself, you should at least go in armed with these expert tips …
With many smaller firms struggling to make ends meet, as a last resort some may decide to fight disputes without a lawyer. Here are a few tips to help you along if you do end up representing yourself.
- Canvass the issue
Whether it is an extension of time, a money dispute or something else, it is useful to get the views of others who are not involved in the job. It is far too easy to become so involved in a problem that you can’t see it for what it really is. Normally you have a lawyer to give you impartial advice, but in the absence of this, ask someone else in the company to assess your case. Ask your adviser to be honest. It is better to spot any weaknesses in your argument early – for example, the fact that you are unlikely to prove a change to your employer’s requirements – and deal with them before you take it any further. Get them to play “devil’s advocate” to test your case.
- Plan of action
Make sure you have a strategy worked out in advance. Will you submit a claim? How much time do you plan to give the other side to respond, bearing in mind the concept of a crystallised dispute. Does the contract contain clauses that require senior individuals to meet before adjudication or any other form of dispute resolution begins? Are you interested in going through negotiation or mediation?
- Back to basics
Start from first principles. For instance, it is important to remember to base your argument on what the contract actually says, rather than how you interpret it or what you think it should say. Identify the clauses under which you maintain the company’s entitlement to what you are asking for. Referencing the appropriate clauses to support your claim is essential and this will lend it credibility. The contract administrator (and any adjudicator) will spot this.
Five files may be too much to trawl through and could intimidate the administrator. A good argument depends on quality, not quantity
- Short is sweet
Don’t be fooled into thinking that more is more and end up overwhelming the contract administrator with excess information to back up your claim. Five files may be too much to trawl through and could intimidate the administrator. A good argument depends on quality, not quantity.
If you have no option but to go to adjudication, clearly itemise what is in dispute, and supply identified supporting documents. As the volume of documents submitted increases, so does the risk that not everything will be read. Highlight what is most relevant. Be seen to be reasonable about timescales for responses and for the adjudicator’s decision.
- Common sense
If you are looking for an extension of time, don’t assume it is essential to include a delay programme. Contract administrators have an obligation to form their own views about the consequences of a delay and detailed delay programmes may confuse them. Instead, apply common sense to the delaying event and focus on making the result of this clear. Which activities did it delay? Why were these critical? Why does this entitle you to more time? Make sure you refer to the contract provisions at all points.
Don’t use the ‘time at large’ argument as a matter of course. It is often seen as a sign of weakness
- The weaker argument
Don’t use the “time at large” argument as a matter of course. It hardly ever succeeds and is often seen as an argument of last resort and a sign of weakness. The contract provisions should give you all you need.
- Extreme measures
In disputes over measurements, what is the issue? Is it a point of principle as well as value? If so, identify clearly why you are entitled to be paid extra in principle. For example, have you spent a provisional sum? Has there been a change? Is work being carried out under different conditions? For disputes over value, produce the build-up to your rates. All back-up should be submitted with the application and clearly cross-referenced. Don’t leave it to the contract administrator to trawl through past applications. Have the back-up neatly paginated against each measurement item.
- What about retention?
If this is the final account or close to it, should the first half also be claimed?
- Be cautious
Don’t make bold assertions without evidence to support your position as you will lose credibility. Consider where gaps in the evidence can be plugged by witnesses, but remember to be critical in your choice of witnesses (see 27 March, page 58) and how they will be perceived by the adjudicator. They could make or break your case.
If you stay calm and organised and keep consulting the contract, success is more likely to follow.
Original print headline - You’ll never walk alone
Lindy Patterson is a partner in Dundas & Wilson