Driver Trett Digest Issue 22 October 2021 - Flipbook - Page 13
DIGEST | ISSUE 22
FIRING THE STARTER ROUND
For claimants, the rule of thumb is that by the time a dispute
reaches court, claims must be consistent, complete, and
ready to be presented concisely in Arabic from day one.
A common misconception is that claims produced during
the progress of the works are adequate and sufficient for
use in court proceedings, but this may not always be the
case. Whether because of gaps, errors, or heavy reliance
on complex technical matters, it is always recommended
to have claims reviewed, inspected, and sometimes even
adjusted by a claims professional before they are handed
over to determination by a court.
The best time to lay the foundations for
a sound defence strategy is during the
period between a court’s notice and the
date on which a court appoints a technical
expert.
Once an expert is appointed, time tends to warp and
compress so much that defendants can be on the backfoot
and playing catch up rather than working to put their best
arguments forward.
STAYING THE COURSE
Work does not end with the first round of submissions but
tends to persevere for the many skirmishes that usually
follow.
A court appointed expert will often invite parties to several
in-person meetings and will consider the prospects of site
visits. They will also often require parties to reiterate and
summarise their arguments by means of brief presentations
in Arabic and invite the other party to comment on them.
While in-person meetings have now shifted online due
to the pandemic, they are still a very important feature of
construction litigation because they provide a roadmap to
where experts should carry their investigations instead
of sifting through tens of thousands of often convoluted
technical documents.
There are two critical success factors to ‘staying the course’:
first, there is the issue of keeping up with the expert’s
requests for more information, which are often required
within the span of only a few days. Then second, comes the
delicate art of distilling complex matters and presenting
them clearly in a manner that would withstand challenges.
These presentations are done in-person and in the Arabic
language.
The language barrier is a significant issue, not only because
court submissions are required in Arabic and parties will
often find themselves having to expend large sums of money
for translation, but also because exhibits and technical
documents are often processed by legal translators who,
for the most part, are not trained engineers. Thus, parties
may run the risk of having their technical arguments
misinterpreted or, in extreme cases, altered. (See our other
article in this edition of the Digest on the subject of the
challenges of accurate translation.)
COMMON PITFALLS
Parties hailing from common law jurisdictions may quickly
realise that expert determinations are not restricted by
the contract agreed by the parties but will also extend to
incorporate other civil law principles, such as the duty of
good faith to avoid issues of unfairness.
Unlike common law jurisdictions which view construction
entities as “normally well able to look after themselves”3,
and so have only developed “piecemeal solutions in response
to demonstrated problems of unfairness”4, the duty of good
faith in local UAE court proceedings may very well extend
to contentious issues such as: time bars, concurrent delays
as well as perceivably delayed payments and engineer
determinations.
This is why defendants must be cautious not to centre their
legal arguments around administrative failings alone, such
as a claimant’s failure to submit a claim on time, without
explaining why these have caused loss to the defendant. An
example of such loss could be where a subcontractor fails to
submit its claim to the main contractor within time, which
then results in the main contractor losing its rights under the
main contract.
Another issue is where claimants artificially inflate the value
of their dispute in the hope of settling for a higher amount
than they are actually owed. The downside is that court
appointed experts may find this an overt element of bad faith,
which may then have knock-on effects on other aspects of
the matters in dispute.
Finally, one cannot stress enough the importance of appointing
legal counsel and technical support in a timely manner.
In an industry where construction disputes are handled
by a limited pool of highly-qualified professionals, it is
always advised to plan ahead and work towards building
your ‘dream team’ as soon as practical.
Signs of a highly functioning team can be seen arising from
early identification of strengths and weaknesses of the case,
agreement on claims or defence strategies, establishing
efficient channels of communication, and then later, achieving
a favourable and equitable outcome, either via negotiation or
via the court process.
3 Humphrey Lloyd, ‘Adjudication’ [2001] ICLR 437
4 Bingham LJ in Interfoto v Stiletto [1987]
[1989] EWCA Civ 6
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