Glossary

Academy of Experts A professional institution which governs the activities of those expert witnesses that are members.

adjudication A statutory dispute resolution process in which disputes are referred to a neutral third party for a decision that is binding on the parties. The process operates to a short timescale and the decision may be reassessed by means of arbitration or litigation once the contract is at an end.

ADR Alternative Dispute Resolution. Dispute resolution methods other than litigation or arbitration.

adversarial The nature of adjudication, arbitration and litigation in common law jurisdictions. The parties test the opposing arguments and counterarguments by means of cross-examination, and the court or tribunal decides on the relative merits of the arguments in coming to a decision. See also ‘inquisitorial’.

after the event insurance A type of insurance to cover legal costs and any damages that may be payable. It is taken out after a potentially loss-causing event has taken place.

arbitral award The decision of the arbitral tribunal as a result of arbitration proceedings. The procedural equivalent of a court judgment in litigation.

arbitral tribunal The person or persons appointed to decide the outcome of a dispute that has been referred to arbitration.

arbitration A method of dispute resolution, governed by the Arbitration Act 1996, whereby the parties privately appoint one or more persons to assess the merits of their opposing cases and issue a decision, known as an arbitral award. The parties agree that this award will be binding upon them.

Arbitration Act 1996 The statute that governs the operation of arbitration in the jurisdiction of England and Wales.

‘back to back’ agreements Agreements which impose terms upon subcontractors or subconsultants which are similar to, and compatible with, those agreed between the parties to a construction contract or consultancy agreement.

balance of probabilities The standard of proof required in civil law. Effectively, where there are two competing arguments or pieces of evidence the decision will rest on which is more likely to be the case.

barrister A lawyer who has been called to the Bar by one of the four Inns of Court and who specialises in the provision of advocacy and advice on specific points of law. Barristers’ conduct is regulated by the Bar Standards Board.

breach of contract The failure of a party to a contract to fulfil one or more of its obligations under that contract.

case law Legal principles which do not arise from statute but rather from decisions made by judges in cases that have been brought before them.

case management The overall management of a case by the lawyers acting for a party. The overall management of the process of litigation by the court to which the case has been assigned.

case management conference A meeting between the parties, their legal representative and a judge from the court where the matter will be heard. Commonly referred to as a CMC. Following a CMC, the judge will issue orders concerning the various steps and activities which the parties are to undertake and the timescale within which they are to be completed.

CIArb The Chartered Institute of Arbitrators. A professional institution that provides training and certification in adjudication, mediation and domestic and international arbitration.

CPR Civil Procedure Rules. An extensive set of rules and directions that govern the proceedings of litigation in England and Wales.

claims consultant A person or firm who, typically, assists a contractor to organise and assemble documents required in order to bring a financial claim at the end of a project or stage of a project.

civil code A system of law in which the principles are written down in an extensive and comprehensive code, which is applied by the courts.

civil code jurisdiction A jurisdiction that operates a codified legal system. Notable civil code jurisdictions include France, Germany, Italy, Russia.

common law A system of law in which the principles are not written into a comprehensive code but which develop in response to the matters that are brought before the courts and the decisions of the judges who hear those cases.

common law jurisdiction A jurisdiction that operates a common law legal system. Notable common law jurisdictions include the United Kingdom, the United States, Australia and New Zealand.

conditional fee agreement Arrangement whereby solicitors or barristers may agree to represent you on the basis that if you lose they will not take a fee but if you win they will take an enhanced fee.

consent order See'Tomlin order'.

Construction Act 1996 The Housing Grants, Construction and Regeneration Act 1996 as amended by the Local Democracy, Economic Development and Construction Act 2009.

construction law A generic term referring to the statutes and the body of case law that relates to the construction industry. Construction law was first recognised as an area of practice in its own right in a book of the same name written by Professor John Uff QC, published in 1974. It has since developed into a significant sector with many specialist practitioners.

construction lawyer A solicitor or barrister who specialises in the practice of construction law.

consultant transfer See also ‘novation’. The transfer of the appointment of an architect or other design consultant from the employer to the contractor in design and build procurement.

consumer The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 provides the following definition of a consumer: an individual acting for purposes which are wholly or mainly outside that individual’s trade, business, craft or profession.

contract administrator The person identified in a construction contract as having responsibility for carrying out the administration functions identified within the contract.

contractor’s design portion An addendum to an otherwise traditional construction contract which identifies some portions of the work for which the design will be carried out or completed by the contractor.

contributory negligence In cases where a breach of a duty of care in tort, i.e. negligence, is alleged, the damages awarded may be reduced if the claimant has contributed to their loss by negligent actions of their own.

costs The costs associated with bringing or defending a case in litigation, arbitration or adjudication. Typically in arbitration and litigation, the losing party will be required to pay the reasonable costs reasonably incurred, and in some circumstances the full costs, of the winning party.These can be substantial. However, there are circumstances where a winning party may not be awarded costs and may find that the damages that are awarded do little more than cover the costs that were expended in the action; a pyrrhic victory.

costs follow the event A phrase which is commonly used to describe the award of costs to the winning party.

County Court The lowest level in the hierarchy of civil courts.

Court of Appeal A level of court between the High Court and the Supreme Court, whose function is to hear appeals on points of law in cases referred from the lower courts.

Crown Court A criminal court with higher sentencing powers than a magistrates’ court. More serious cases are tried here and are heard in front of a jury who will decide whether or not the accused is guilty.

damages The sum sought and/or awarded in compensation for financial loss suffered as a result of a breach of contract.

defence A formal response to a statement of claim in which each point of the claim is admitted, denied, or required to be proved.

design and build A form of construction contract whereby the contractor takes on responsibility for carrying out or completing the design of a project as well as its construction.

duty of care The obligation in common law to avoid committing any civil wrong or wrongful act (tort) which might cause injury to another, whether deliberately or by accident.

expert determination A form of dispute resolution where the parties refer the matter to a person with expertise and experience in the subject matter of the dispute and agree to be bound by the decision reached by that person.

expert evaluation An objective and impartial evaluation of the relative merits of opposing cases in a dispute, made by a neutral third party with expertise and experience in the subject matter of the dispute. The parties are not bound by the evaluation but may find it of assistance when negotiating a settlement.

expert evidence Evidence which is provided in order to assist a tribunal to form an opinion on matters which are outside their own experience and knowledge. Expert evidence is presented as the opinion of the expert rather than as a matter of fact.

expert witness A person with sufficient expertise and experience in a particular subject to enable them to provide expert evidence. An expert witness is required to be impartial when providing their opinion and, under the Civil Procedure Rules, owes a duty to the court which overrides any duty that they may owe to the party who appoints them.

High Court The highest level of civil court at which cases are heard at first instance.

inequality of arms A phrase referring to a situation where the parties to a dispute have significantly differing levels of legal representation or some other imbalance which does not relate to the relative inherent strength of the opposing cases.

inquisitorial The nature of arbitration and litigation in civil law jurisdictions. Instead of cross-examination of witnesses by the parties, the judge makes any inquiries that he or she considers to be necessary to determine the relative merits of the opposing cases. He or she then makes a decision within the parameters set out by the civil code of the jurisdiction.

joint and several liability The principle by which parties with a share of liability are liable not only for that share but also for the whole liability in the case of default by the other party or parties.

judge A High Court judge is usually referred to as Mr (or Mrs) Justice. This is conventionally written as, e.g. ‘Smith J’. Judges in the Appeal and Supreme Courts are referred to as Lord (or Lady) Justice. This is conventionally written as, e.g. ‘Smith LJ’.

letter of claim The first step in the pre-action protocol. A letter from the client notifying the prospective defendant of the existence of the claim and setting out in general terms the case to which they will have to respond.

limitation The period within which an action for breach of contract or negligence in tort must be commenced.

litigation A method of dispute resolution that uses the court system provided by the state.

litigation risk The risk that even a case which seems to be very strong may not win because of factors beyond the control of the party or their legal team. Witnesses of fact or expert witnesses may not perform well under cross-examination. An opposing case may be argued in a particularly persuasive manner. A judge or tribunal may place particular importance on an aspect of the case which a party had not considered to be pertinent.

Magistrates’ Court The lowest level of criminal court in the court hierarchy, with limited sentencing powers.

mediation A method of dispute resolution whereby parties meet in the presence of a neutral third party, the mediator, in order to find a mutually beneficial settlement agreement.

Money Claims Online An online procedure for making small claims up to £10,000 in the County Court. It is administered by Northampton County Court.

negligence Breach of a duty of care owed under the law of tort.

New York Convention Full title: Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York 1958). An international convention drawn up by the United Nations Commission on International Trade Law (UNCITRAL) under which signatory nations agree to recognise and enforce arbitral awards made in other countries. At the time of writing, there are 156 signatories to the convention.

novation See also ‘consultant transfer’. The transfer of the appointment of an architect or other design consultant from the employer to the contractor in design and build procurement.

Part 36 offer An offer to settle made under Part 36 of the CPR during the course of proceedings. A refusal to accept such an offer may have consequences related to the award of costs to the refusing party. A claimant who fails to obtain a judgment more advantageous than a defendant’s Part 36 offer or a defendant who is subject to a judgment that is at least as advantageous to the claimant as the claimant’s Part 36 offer will be ordered to pay the other party’s costs, despite ‘winning’ their case.

position statement A brief outline of a party’s position, or arguments, prepared for exchange with the opposing party in advance of a mediation.

practice directions A set of directions provided as part of the Civil Procedure Rules.

pre-action protocol A series of steps that are set out in the Civil Procedure Rules and which the parties must follow before a dispute can be brought before the court.These steps are designed to bring about a settlement of thedispute without the need for a hearing in court.

precedent The requirement for lower courts to follow the decisions made by higher courts.

privilege Refers to the confidentiality that attaches to communications between a person and their lawyer for the purposes of, or in anticipation of, legal proceedings.

privity of contract The principle by which only parties to a contract may rely on the terms of the contract or bring an action for a breach of that contract.

project manager A person who undertakes responsibility for the planning procurement and execution of a project. The employer and the contractor may both employ the services of separate contract managers. The employer may appoint the architect to carry out this function or may employ a separate person.

QC Queen’s Counsel; King’s Counsel (KC) during the reign of a king. Eminent lawyers, mostly barristers, who have been appointed to be one of Her Majesty’s Counsel learned in the law. The appointment is based on merit rather than seniority.

remedy The thing which is sought by a claimant. For example, damages in the form of money or specific performance of the contract by a defaulting party.

RIBA The Royal Institute of British Architects. A professional institute for registered architects that governs the conduct of its members.

RICS The Royal Institute of Chartered Surveyors. A professional institute for surveyors that governs the conduct of its members.

settlement The resolution of a dispute by agreement between the parties.

settlement agreement An agreement that sets out the terms of a settlement between the parties. This may be taken to court and judgment entered on the same terms.

solicitor A member of that branch of the legal profession regulated and overseen by the Solicitors' Regulation Authority. Solicitors typically take on the management and overall strategic planning of a case in legislation as well as providing non-contentious legal services, such as drafting of contracts.

specialist design The design of certain specialised elements or components to be incorporated into a building. Examples would include: curtain walling or cladding, fire alarm systems, complex lighting and lighting control systems.

specialist subcontractor A subcontractor who manufactures, supplies and may also design specialised elements or components such as cladding, lifts, lighting systems and controls.

specific performance An alternative remedy to damages where the court orders a party who is in breach of contract to fulfil the can tract condition that was breached rather than to compensate the other party by a monetary payment.

standard of care The level of duty owed in contract or tort.

standard of proof The standard to which an allegation or claim must be proved by the evidence adduced in its support. In civil matters the standard is described as ‘the balance of probabilities’. In other words, the evidence must demonstrate that it is more likely than not that the allegation or claim is true. In criminal matters the standard of proof is higher and the evidence must show ‘beyond reasonable doubt’ that the allegation is true. In criminal trials juries are generally directed by the judge that they must be ‘sure’.

statement of claim A written statement prepared and issued as a follow-up to the letter of claim. In this statement each item of the claim is set out separately in detail.

subrogation A contractual mechanism by which, in certain circumstances, a third party may ‘step into the shoes’, or take on the rights, of a party to a contract. Most often seen in relation to insurance where an insurer will insist on rights of subrogation in order to initiate actions to recover monies that it has paid out.

Supreme Court The highest court in England and Wales. It took over this function from the House of Lords on 1 October 2009. Its decisions are binding on all lower courts.

TCC The Technology and Construction Court. A part of the Queen’s Bench division of the High Court.

third party neutral An independent third party appointed by parties to a dispute to hear the opposing cases, consider them fairly and impartially and make a decision on the resolution of the dispute. The term may be applied to an adjudicator, an arbitrator, a judge or an expert who has been asked to determine a matter.

third party rights The rights of third parties who may be affected by matters related to a contract between others.

Tomlin order A court order which is made when a matter which is being litigated is settled at mediation before trial. The order records the agreement between the parties whilst preserving the confidentiality of terms of the settlement by attaching them as an appendix to the order rather than as part of the order itself.

tort A civil wrong, or wrongful act, whether intentional or accidental, from which injury to another arises. A tort is distinct from a criminal wrong or a breach of contract.

value engineering The name given to a process of reducing the costs of procuring a project.

without prejudice A principle which will generally prevent statements, whether written or oral, which are made in a genuine attempt to settle a dispute, from being put before the court or tribunal as evidence of admissions. The principle results from the public policy of encouraging parties to settle their disputes out of court and is intended to foster frank discussions with a view to reaching agreement.

witness of fact A person who is called upon to provide the court or tribunal with factual information regarding the matters in dispute.