On apply for a summary judgment the most appropriate

On the
subject of third-party rights, (Bell and Grudzinski, 2014) further criticises the
practicality of multiparty having slim chances of adjudicating, notwithstanding
enforcement clause for adjudication.  One
question that that needs to be asked, however, is whether the insurance
company, funder and subcontractor, are they better suited in adjudication or
arbitration.

Returning
briefly to the issue of enforcement clause, the existing accounts fail to
resolve the contradiction between the cases of Hurley Palmer Flatt Ltd v.
Barclays Bank plc & Parkwood Leisure Ltd. v. Laing O’Rorke Wales and West
Ltd. Many analysts (Brooke 2009; Sidoli Del Ceno et al., 2015; Skaic 2017) now
argue that the strategy of adjudication has been called into question.

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Difficulties
arise, however, when an attempt is made to implement the adjudicator’s ward;
critics such as Skaic (2017) point out those delay tactics by responding
parties and challenging the adjudication determination. Although disputants may
resist the enforcement it has to be a plain one the court expect, for example;
the adjudicator did not have a jurisdiction, breach of natural justice. 

Alternatively,
parties can apply for a summary judgment the most appropriate by far and the
courts considers that the claimant/defended has no real prospect of succeeding;
including no other compelling reasons.

(Sidoli
Del Ceno et al., 2015) asserts that another problem with this approach is the
financial imbalances, the limitation of time for adjudicators and complexity of
claims. 

4. Litigation and third parties

 

This
section has assumed that the multiparty have complied with Pre-Action Protocol
for Construction and Engineering Disputes.

The
Technology and Construction Court (TCC) has been instrumental in the setting of
disputes. (Joyce, 2011) describes litigation as a process designed to resolve disputes
under the law. Part 19 of the Civil Procedure Rules (CPR) suggest that
decisions are binding on third parties.

There
are several possible explanations as to why multiparty may be involved in
arbitration, for example, a party seeking a summary judgment whilst still in
adjudication or multiparty seeking point of law, (Gard, 2017). Yet,
advocates uphold that the benefit of using litigation in comparison to
arbitration, the courts uses its discretion to hear multiparty disputes.

(Joyce,
2011) cites Lord Woolf’s recommendation that beforehand parties in a dispute
should be encouraged to negotiate before even considering
litigation. This method is one of the more practical way expected by (CPR)
Part 1. Likewise, prior to commencing litigation parties can set their own
rules for arbitration and agree on a settlement; Part 36 of CPR.

(Gard,
2017; RICS,
2017), cautions multiparty on time limits1 and limitation claims (Limitations
Act 1980) imposed by (CPR); so failure may lead to court sanctions. Notably,
parties must decide how their matters shall be dealt with by the courts either
in one hearing, joint claims or third-party funding. (Gismondi,
2017; Deffains
and Desrieux, 2015) contends that third-party funding is
there to address the imbalance of power; provided that parties must be aware of
what transpired case ref:2

A Claimant
must include a claim for legal costs and the claimant is entitled to claim for
its pre-action costs.3

According
to (Deffains and Desrieux, 2015) once the court has made a ruling, it will
issue an order then the defendant has to pay claimant within a certain amount
of time. In the event, the defendant fails to pay the judgement is enforced
automatically Practice Direction 70 of the CPR

More
recent arguments against litigation have been summarised by (Joyce, 2011; RICS,
217) who argue the proceedings are usually time- consuming and complex and the
courts are inflexible.4 Arising out of this, the process usually leads to damage to
relations between parties. In any case, (Deffains and Desrieux, 2015)
contends that party may request summary judgment and the party has to show that
the other has no real prospect of succeeding. 

Above all, appeals are set out
in Rule 52 of CPR but then the courts
are very tight.

5. Amicable settlement and third parties

 

For
the purposes of this assignment, it is assumed that multiparty have selected an
evaluative mediator and agreed to negotiations. (Brooker, 2009)
maintains that the primary role of an evaluative mediator is to assist parties
with formal inter-party negotiations with the right ambience for conversation.

As
well as negotiations, multiparty have chosen to negotiate with each and that
the problem-solving approach will be facilitated by very skilled senior
personnel (negotiators) representing each party. Negotiation is an
informal process in which parties will attempt to resolve their difference
following a dispute. According to (RICS, 2017), this dialogue of
negotiations may include: without prejudice5 progressing6 and
concluding the agreement

 If (Wright’s, 2011) findings are accurate,
mediation and negotiation are a voluntary and a non-binding dispute resolution
process. The problem with this approach is that the process is
no-binding albeit, if parties reach an agreement it becomes enforceable.7

(Brooker,
2009) claims that Civil Procedural Rules in the UK and the European
Directive 2008/52/EC encourages the use of mediation.8
Critics contend despite the encouragement
there is little no evidence to suggest that mediation is effective in
construction disputes, (Brooker, 2009; Gregory-Stevens et al., 2016).

According
to (Goltsman et al., 2009) parties in
mediation communicate their dispute with a neutral and upright third- party who
is described by the parties as a mediator or expert then facilitate
communication, to express their opinions to the parties on merit, including
point of law, (Wright, 2011; Jarratt, 2014).

According
to (Jarratt, 2014), the involvement of a subcontractor, funder or insurance company
is likely to be a ‘co-mediation by multiparty’ on a (Listening capacity only)
that includes their legal representatives. For instance, it is possible that a
contractor with authority to settle, may seek an opinion from the
sub-contractor or insurance company may seek compromise on an insurance policy.

What’s
more, these confidentiality proceedings are without prejudice but even though
the parties agree to mediate they must demonstrate that they are fully engaged.9
With the consent of parties and in usually case the negotiations leads to
archiving a settlement as soon as parties BATNA is achieved.10

(Goltsman
et al., 2009) maintains that the shortcomings of this procedure are that
parties positions are entrenched, power imbalance, exaggerated demands, a party
has a right to withdraw from the proceedings without giving reasons etc.,

Significantly,
the court will penalise the party that act unreasonably to mediation.11
Notwithstanding, one advantage of is that he/she can submit a report on the
possible settlement if parties fail to reach an agreement.

 

1 Lincolnshire
County Council v Mouchel Business Services Ltd & Anor 2014 EWHC 352 (TCC)

2
The RBS Rights Issues litigation 2007 EWHC 1217

3James
R Longley v. South Western Health Authority 1983 25 BLR 56

4Mitchell
MP v. New Group Newspapers Ltd 2013 EWCA Civ 1537

5 Courtwell
Properties Ltd v. Greencore PF (UK) Ltd 2014 EWHC 184 (TCC)

6 Civil
Procedure Rules

7 Thakrav
v. Ciro Cittero Menswear p/c 2002 EWHC 1975.

8Halsey
v. Milton Keynes General NHS 2004 EWCA Civ 302

9Thakkar
and another v. Patel and another 2007 EWHC Civ 117

10 Hickman
v. Lapthorn 2006 EEWHC 12 (QB

11Dunnet
v. Railtrack PLC 2002 2 AII ER 850