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Expert Services

It should be noted that the Expert Services offered by March Surveying Services Ltd are fundamentally different to the Services provided under the categories of Quantity Surveying and Dispute Resolution (as described more fully below). These services can be divided into two main categories or roles;

'Expert Advisor'

An Expert Advisor such as a ‘QS Expert Advisor’ or ‘Quantum Expert’ can be appointed by a party to assist in the formulation and preparation of a party's claim, or its defence.

A Quantity Surveyor Expert Advisor has an overriding duty to those instructing him (not to the court, unlike an ‘Expert Witness’), but this duty should include an obligation to the client to explain both the strengths and weaknesses of both sides' cases.

The instructions given to an Expert Advisor will be privileged from disclosure and are therefore not disclosable to the other party in the event of formal proceedings such as Adjudication or Litigation.

The use of an Expert Advisor before proceedings are issued could help a claimant or respondant narrow down the issues forming the basis of the claim, thus ensuring that the cost of the process remains proportionate to the sums in dispute.   

In some cases, the early appointment of an expert advisor can remove the requirement for an Expert Witness altogether and can help lead the parties towards an amicable settlement.

'Expert Witness'

An Expert Witness is a person whose level of specialised knowledge or skill in a field qualifies them to present their opinion about the facts of a case during legal or other adversarial proceedings.

These ‘proceedings could involve (not exhaustive);

Mediation
Adjudication
Arbitration
Litigation
An Expert Witness is not and should never be or become an Advocate.

The obligations of an Expert Witness are set out in the Civil Procedure Rules and are underpinned by Judge J Cresswell’s decision in the case known as the ‘The Ikarian Reefer’ (National Justice Compania Naviera SA v Prudential Assurance Company Limited), amongst others.

The Civil Procedure Rules (herein ‘the CPR’)

The Rules governing Experts and Assessors in the context of our services is set out in Part 35 of the CPR.
The CPR, at part 35.2(1), states;

‘(1) A reference to an ‘expert’ in this Part is a reference to a person who has been instructed to give or prepare expert evidence for the purpose of proceedings’.

Part 35.3(1) of the CPR provides that

‘(1) It is the duty of experts to help the court on matters within their expertise.;

And; that,

  (2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid’.

What is ‘Expert Evidence’? 

An Expert Witness ‘opinion’ or ‘Expert Evidence’ is usually presented in the form of an ‘Expert Report’ or ‘CPR Part 35 compliant Expert Report'.

However, there is often a requirement to present Expert Evidence orally in Court.

There is a significant difference between opinion evidence from a layperson and an Expert as to what would constitute acceptable evidence.

Lay witness evidence will usually be restricted to factual matters that are within an individual’s personal knowledge. A lay witness is not permitted to express opinions to the Court or Tribunal.

Contact our Expert Witness Quantity Surveyor / Quantum Expert for a confidential discussion today. We do not provide online consultations for Expert services.
 
As an RICS Accredited Expert Witness and member of the RICS Presidents Panel, March Surveying Services limited are listed on the RICS Register of Accredited Experts.

Expert Reports

Construction Adjudication

Chartered Surveyors

Construction Dispute Resolution

Disputes or differences are a normal and essential part of business. Without differences we would always agree on all matters, all the time. Clearly, this an absurd proposition. 

It is fair to say that most construction disputes revolve (either directly or indirectly) around the differences concerning the primary issues of money and time. 

It should not be forgotten that ‘Negotiation’ is itself a process, and the cost and efficacy of that process must be measured against the time taken to undertake it and to conclude it. 

When parties cannot or will not negotiate, sometimes there is insufficient output to set against the time and cost expended in the course of that process. 

It is for this reason that standard forms of contract such as the NEC and JCT recommend that disputes are resolved at the earliest possibility. This approach avoids wasted costs and unnecessary disruption on construction projects. 

There are many common factors which give rise to disputes in Construction Contracts, but by far the most prevalent is that the paying party or ‘Payer’ refuses to pay sums which the ‘Payee’ considers to be properly due under the contract. 

Compounding and / or influencing factors often include:
 
  • Poor design;
  • Market conditions;
  • Low tender pricing
  • Volume of change;
  • Competition (excessive or lack of);
  • Future workload;
  • Insolvencies;
  • Availability of cash;
  • Currency fluctuations;
  • Changes of Law;
  • Organisational politics and power structures;
  • Reputational matters and perception;
  • Unethical and irresponsible practices;
  • Differences in opinions, and / or values;
  • Staff changes;
  • Poorly defined conditions of contract;
  • Poor contract administration;
  • Time pressures;
  • Cost pressures;
​
It is far from possible to control or to even mitigate some of the factors leading to disputes, but it is possible to decide on the timing as to when a dispute should be brought to an end, allowing the parties to move on and continue their core business activities without undue distraction and exceptionally high levels of wasted cost. 

If your negotiations have proved costly and unyielding, why not use the process of Construction Adjudication to resolve your dispute?
Expert Service
Constructon Dipute Resolution
Quantity Surveying
The quantity surveying services our company offers include:
 
  • Construction cost consultancy – Pricing, measurement, inflation, indices adjustment, bills of quantities, order of cost estimates, ‘check prices’ against tenders, tender comparisons, and more. 
  • Procurement services– Strategy, procurement routes, frameworks, package scoping, scheduling, tender enquiries, due diligence, sourcing, supply chain monitoring, documentation reviews, advice on terms and conditions, and / or proposal of amended contract clauses.
  • Contract advice – Contract strategy, contract selection, modification of contract clauses, suggested deletion of imbalanced/onerous clauses such as those prohibiting payment, conditions precedent, and those designed to restrict your entitlement to money and time for acceleration, prevention, default, termination, and the like.
  • Risk reduction advice – Avoiding contractual traps and commercial gamesmanship, limitation of liability, leveraging your position timeously to secure entitlement, identification of onerous scope, resisting poorly drafted or unwanted instructions, forward looking ‘what-if’ scenarios.
  • Contract administration – Production of Notices, advice on ‘defective notices’, avoiding contractual traps and dilatory tactics, identification of entitlement to extensions of time and loss / expense and compensation events.
  • Valuation of the Works – Sub-contractor accounts, main contract applications for payment, variations, loss and / or expense (as change, or in a prospective or retrospective ‘claim’), interim applications for payment, and final applications for payment). 
  • Dealing with difficult parties on your behalf – This frees up your time to concentrate on your core business activities.
  • Outsourced quantity surveying teams (procurement departments, commercial departments, and change departments) – We can provide several flexible, experienced, and qualified commercial and contractual Consultant Chartered QSs. They can deliver the quantity surveying / claims / expert services required by your organisation – at short notice.
  • We can attend site meetings, and complete all commercial work required to the highest standard. Projects can also be delivered via our online QS.
  • Online consultations – In circumstances where the cost and lost time associated with travel is prohibitive to our clients, we offer ‘online consultations’. Most routine issues can be dealt with by our online quantity surveyors. Large volumes of information can be easily exchanged using our cloud-based information management system.
Quantity Surveying
Construction Adjudication
The Royal Institution of Chartered Surveyors (herein ‘RICS’) describe Adjudication as follows;  
 
‘Adjudication in the construction industry is a process that enables a dispute arising under a construction contract to be referred to another person (the adjudicator) at any time. 
 
The adjudicator, acting impartially on the basis of such information as the parties to the dispute provide, reaches conclusions as to the parties’ rights and obligations under their contract in a very limited timescale (28 days unless extended). 
 
These conclusions are set out in a decision that is binding on the parties, unless or until the original dispute is finally determined by legal proceedings or by arbitration (if the contract so provides or the parties so agree), or by agreement between the parties. '
March Surveying Services specialise in construction adjudication and act in the role of ‘Surveyor-Advocate’ to prosecute your claims, or to mount your most robust defence if such action is brought against you, or your organisation.
 
The services performed by March Surveying Services in the course of an adjudication include (but are not limited to) the following parts:
 
Preliminary Analysis
  • Review of documentation provided. 
  • Diagnosis of the issues.
  • Ascertainment of the relevant facts and law, the chronology of events, and the range and weight of the available evidence.
  • Analysis of the strengths and weaknesses of your position - in cognisance of the terms and conditions of contract, and relevant case law (this may result in us advising you NOT to adjudicate, or to settle prior to formal proceedings, or even prior to the issuance of an adjudicator’s decision if proceeding have already commenced against you).
  • Guidance on ‘excluded contracts’ and the matters which should not be referred to adjudication. 
 
Strategy
  • Leveraging the prospect of an unwanted adjudication on the other side to facilitate a fairer and more balanced negotiation.
  • Is negotiation still possible at this stage?
  • Do those involved in the negotiation even possess the authority to negotiate?
 
Preparations
  • Analysis of Threshold and Internal Jurisdiction
  • Consideration of potential counter-adjudications.
  • Quantum analysis / forensic analysis by an adjudication QS
  • Opinion on likely outcomes – best, worst, and most likely scenarios.
  • Recommendations as to the redress to be sought and the legal basis upon which entitlement to such redress arises.
  • Crystallisation of the dispute.
  • Presentation of the case (referral, response, reply, rejoinder, surrejoinder, etc)
 
The Process
  • Production and service of the Notice of Adjudication (herein ‘the Notice’)
  • Appointment of adjudicator.
  • Service of Referral Notice (herein ‘the Referral’) and any subsequent submissions.
  • Dealing with the adjudicator’s directions.
  • Dealing with jurisdictional challenges.
  • Dealing with timetable extension requests
  • Dealing with inadmissible documents and the opposing sides' attempts to derail the adjudication.
  • Attending formal adjudication hearings.
  • Dealing with challenges of ‘Natural Justice’ (or ‘procedural fairness’) breaches. 
  • Challenging opposing expert evidence or expert opinion.
  • Managing the adjudication process and procedure.
  • Pre-empting the procedural tactics likely to be adopted by the other side.
  • Prospective implementation of measures to avoid or limit such counter-tactics.
  • Assisting in enforcement proceedings.
Construtio Adjudication
Law of adjudication
The Housing Grants Construction and Regeneration Act (1996) (herein ‘the Act’), brought about the right to statutory adjudication principally to increase the rate of cash-flow between the parties to a construction contract, and to provide a swift and low-cost mechanism for the resolution of construction disputes outside of the Technology and Construction Court. 
Section 108(1) of the Act provides that 

‘A party to a construction contract has the right to refer a dispute arising under the contract for adjudication under a procedure complying with this section’. 

For this purpose,“dispute”includes any difference’. (bold emphasis added) 

It is therefore possible in principal, under the act, (save for ‘excluded contracts’ and for matters of threshold jurisdiction) to refer ‘any difference’ to adjudication.

The act is supported by a Statutory Instrument – the Scheme for Construction Contracts (England and Wales) Regulations 1998 (herein, ‘the Scheme’). 

In simplistic terms, the rules of ‘the scheme’ are implied in cases where the payment and / or adjudication provisions in a construction contract fall short of satisfying the payment and / or adjudication provisions set out in ‘the Act’.  
The scope of ‘the act’ and ‘the scheme’ is such that a wide range and type of disputes can be referred to adjudication.

It is the act and the scheme that form the backbone of the Law of Adjudication.
Why use construction adjudication to resolve your disputes?
Unresolved disputes or ‘differences’ typically result in a series of ongoing disruptive events and processes. These disruptive events are often capable of derailing the entire project.

As such, a party to a construction contract would be desirous of minimalizing the impact of these events.

in some cases, the dispute itself can unwittingly become the main barrier to progress. In such instances, the attention of the project team may be diverted from delivering the works, instead focusing on managing the direct and indirect impacts of the dispute.

Protracted and non-productive negotiations can eventually wear down your team and opportunity can be lost.

The programme often suffers first, followed shortly by the budget. The uncertainty around the financial position and programme can lead to indecision on both sides. Existing delays are compounded, and potential future delays remain unmitigated. 

Matters that would (save for the dispute itself) not be a major issue to either party become interconnected.

At this point, it is not uncommon for a dispute to have caused or contributed to major delays and / or disruption to the project. Backlog issues accumulate and become erroneously intertwined with the primary issues. 

Disputes, if not resolved quickly generate exceptionally high levels of wasted cost and disruption.  

Principally, neither the client or contractor receives no ‘value’ or physical construction work to set against this expenditure. 

There is indeed a hidden wasted cost in instances of protracted and non-productive 
negotiation.

Wasted cost flowing from unresolved disputes often increase the scope and depth of the disputed matters far beyond the scope and extent of the original issues in dispute.  

The cycle continues, and deadlock ensues. Delays are further compounded.

The process of adjudication provides a quick and inexpensive mechanism for breaking deadlocks, making money flow between the parties, and most importantly bringing an end to the dispute – allowing the parties to conduct business as usual.

On large projects, significant and measurable preliminary cost savings can be made by way of the contemporaneous resolution of disputes, using construction adjudication. 

On major projects the preliminary savings can easily run into millions of pounds on both sides. 

The saving arises simply due to reducing the time and cost incurred in resolving the dispute, plus avoiding the resultant wasted costs which arise from disruptive events brought about solely by the presence of the dispute itself.  

Most organisations do not possess the requisite level of expertise in-house to resolve disputes via formal proceedings, and where this is the case, there will be a requirement to outsource the requirement for a chartered quantity surveyor with dual qualification in construction adjudication.
Why use construction adjudication to
Law of adjudicatio
When should I consider referring my dispute to adjudication?
Construction adjudication is a process best used to prosecute ‘bite-sized’ breaches of contract where the parties' allegations can be fully supported by contemporaneous evidence. This approach ensures a high rate of success. 

A common mistake is to refer too many issues to adjudication (at the risk of undermining threshold jurisdiction in the first instance).

A significant part of the skill comprising this specialism is knowing when one should seek prosecution via adjudication, and when one should not. 

The use of adjudication, in the main, should be reserved to circumstances where you have been subjected to an injustice and the other side cannot or will not negotiate in manner which will enable you to cover your legitimate costs and or losses. 

The cost to date and potential future costs of protracted and non-productive negotiation should be factored in to any decision.  

Adjudication should be considered in circumstances where the contract is no longer operated in a manner which allows you to secure your entitlement to money and time. At this point, the relationship is thus ‘broken’, and most decisions and courses of action are effectively removed from your control.

In such circumstances any negotiation or settlement is likely to be unfavourable to both sides.

A protracted and non-productive negotiation in a broken relationship is likely to create a long lasting hostile environment and culture of distrust. 

An adjudicator has the power to marshal the parties' submissions and conduct during the proceedings. This prevents escalation of disputes beyond the scope of the original issue, unlike negotiation.
When should I consider referring my dis
Advantages of construction adjudication
  • Adjudication is an inexpensive route to obtaining justice, and payment.
  • If a party cannot or will not move its position, an adjudicator will do it for him.
  • Adjudication is fast. The dispute is quickly disposed of and the parties move on.
  • An adjudicator’s decision is binding - the payer must pay.
  • It offers finality and therefore, certainty, to your position – once decided there are less unknowns in the forecast outcome of the project. You are no longer dependent on the assumed goodwill of the payer to decide how much you are to be paid, and when.
  • Adjudication is a private process.
  • It usually helps facilitate a more favourable negotiation and / or settlement.
  • Project teams’ efforts are concentrated on delivering the works. The problem ‘goes away’ for those who are not directly involved in resolving the dispute.
  • An adjudicator with industry experience understands the technical issues in a way that a judge may not.
  • Adjudication discourages supply chain abuses.
  • It can be used to obtain time, as well as money.
  • It can result in improved cash flow, and therefore reduce financial costs.
  • Team morale is boosted significantly in the event of success. Even in the event of limited success, the teams focus is now confined to the delivery of the works and less disruptive events occur. 
  • Huge cost savings arise due to freeing up the time of the senior team (compared to their time being consumed by adversarial, prolonged, and non-productive negotiations).
  • Adjudication can be used to ‘re-calibrate’ an imbalanced or dysfunctional contractual relationship. 
  • It allows the parties to break through deadlocks and positional impasses. The adjudicator decides, and the dispute is concluded.
  • The true primary issues quickly rise to the surface. Lesser or ‘sub-issues’ are highlighted and often fall away. Spurious issues often fall away altogether.
  • Parties are less likely to be underhand or untruthful in the setting of a formal process. 
  • The ‘slate is wiped clean’ and the parties move on. 
Advantages of construction adjudication
Disadvantages of construction adjudication

  • Adjudication is an adversarial process (as often is negotiation).  

  • There is usually a ‘winner’ and a ‘loser’ (as is the reality of most negotiations where the primary issue is money).

  • The loser is normally required to pay the adjudicator’s fee.

  • An adjudicator lacks threshold jurisdiction to decide on costs. 

  • A decision can be overturned by way of arbitration or litigation (this is not common).

  • Like any system or process (including arbitration and litigation), adjudication is not perfect. 

  •  

  • Examples of matters commonly disputed across all construction and engineering sectors are as follows; 

  • Is a given variation valid?

  • Is a party due an Extension of Time?

  • Does acceptance of a programme give rise to entitlement?

  • What payment is due, and when shall it become payable?

  • Is an instruction given based on ‘nil value’, ‘nil cost’, ‘nil time’ etc valid?

  • What is the correct rate of Value Added Tax (reduced rated, zero rated, etc)?

  • Who is liable for a specific defect when numerous trades are involved?

  • Has a contract administrator acted in a biased way toward the employer?

  • Has there been a breach of contract?

  • Do any losses stem from a breach of contract?

  • Are the alleged losses recoverable?

  • Did a party owe a ‘duty of care’? 

  • Should term ‘x’ be implied into the contract?

  • What was the applicable ‘standard of care’?

  • Does an alleged ‘defect’ constitute a defect under the contract, or at law?

  • What is the cost of the rectification of said defect and who pays?

  • Has the contract been suspended lawfully?

  • Has the contract been terminated lawfully?

  • Are liquidated damages due? If so, how much?

  • Is a contra-charge, cross-claim, or abatement valid?

  • Is a party due any loss and / or expense?

  • What is the value of the final account?

  • Has a party been over-paid? If so, how much? 

  • Should I refer a Pay-less Notice Dispute (or as it is affectionately known, a ‘smash and grab’ considering the recent case of Grove Developments v S&T Ltd (2018))

  • Was a notice validly served?

  • Has the project achieved practical completion?

  • Should any retention payment be released, and when?

  •  

  • The list goes on. All the above issues are capable of resolution by way of construction adjudication. 

Disadvantages of construction adjudication
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