BUSINESS AND TRAINING 15

By

Uwe Putlitz

An ‘ expert ’ is defined ( in Wikipedia ) as a person ‘ who has a broad and deep understanding and competence in terms of knowledge , skill and experience through practice and education in a particular field ’. Uwe Putlitz guides us through this two-part series .

An ‘ expert ’ may be appointed to provide a report and / or to explain a particular event or procedure at a hearing during an arbitration or an adjudication or to a court of law .

The wording in most standard-form construction contracts makes provision for the participants to resolve a matter of disagreement among themselves and / or by involving the contract administrator as a neutral party . However , the implementation varies between contracts – for example , JBCC agreements do not permit the principal agent to resolve such disagreements . If a disagreement becomes a dispute , the parties must follow the rules applicable at the time when the contract was signed for adjudication , arbitration or mediation .

At times , the client ’ s expectations may not match the ‘ facts ’ of a matter under dispute . It is good albeit difficult practice to explain to the client at the earliest opportunity that the likelihood of achieving a particular result is low . Court proceedings are time consuming , very expensive and there is no guarantee of a favourable outcome . Decisions tend to take many months before being published . Costs are typically awarded against the loser ( but not always ).

Current Alternative Dispute Resolution ( ADR ) thinking seeks to avoid involving the legal profession , particularly if the matter is essentially of a technical nature compared to the ‘ legal interpretation ’ of the wording of a contract or document .

Hence the increasing popularity in many ‘ commonwealth countries ’ of low value dispute adjudication ( LVDA ) – typically to resolve up to three issues not exceeding about ZAR1-million , each in one lever arch file of evidence for ‘ adjudication ’ within 20 business days for an agreed fee , relying primarily on the adjudicator ’ s expertise .

If the matter is to proceed , the aggrieved party or agent are so instructed , and will give ( formal ) notice ( in writing ) to the other party stating the nature of the dispute or a defect and reparation required within a fair period for such work .

If the identified matter or defect is remedied satisfactorily in response to such notice , the matter is deemed to be resolved . If not , the aggrieved party or its agent may appoint the dispute resolution ‘ team ’ in terms of the rules of the ADR provisions in the contract .

Generally , persons appointed as an adjudicator or an arbitrator will have attended specialised post graduate training and are familiar with or practising in the industry and are thus less likely to require the appointment of an expert . However , some situations of a technical or contractual nature may be expeditiously resolved by the appointment of an expert to review what has occurred , what should have been done , and possibly offer guidance how best to resolve such a matter .

Uwe Putlitz is a registered professional Architect and Construction Project Manager , a Fellow of the Royal Institute of Chartered Surveyors ( RICS ) and is a visiting lecturer at the School of Construction Economics and Management at the University of the Witwatersrand . Having recently retired as the Chief Executive Officer of the Joint Building Contracts Committee ( JBCC ) he specialises in the avoidance of construction disputes by way of lectures , technical articles dealing with aspects of contract administration for various industry publications arising from the use of Standardform Contracts including the Federation Internationale des Ingenieurs-Conseils ( FIDIC ), the General Conditions of Contract ( GCC ), the JBCC or the New Engineering Contract ( NEC ) to find an acceptable settlement without resorting to legal processes , where possible . More info : info @ buildstrat . co . za

“ The adjudicator or the arbitrator must determine the need to appoint an expert .”

June 2024 Volume 30 I Number 4 www . plumbingafrica . co . za