Buried away in the Money Section of a December 2017 edition of the Saturday Guardian I chanced upon an article entitled “Angry…..buyers plan class-action suit”
This article concerns the alleged misdeeds of a major UK housebuilder. One aggrieved person who refers to having purchased his home in 2015, claims to still have an outstanding list of 120 snags. Another refers to having returned home to her newly purchased property to be confronted with a smell of gas which led to a National Grid official capping her supply and condemning the installation. Another complains of a sewage smell in the kitchen, a fourth person refers to the combination of a gas leak and a maggot infestation, and a fifth mentions defective stairs, a damp loft and a big hole in the living room.
It is contended in this article that despite an apology having been offered, a panel set up by the builder to address the issues has made little progress. Another implication of the article is that complaints to the National House Building Council (NHBC), the body with the responsibility for setting standards and ensuring that defects complained of within two years of purchase are addressed but which lacks the means to undertake remedial works itself have not resulted in much in the way of positive action. There is mention of one aggrieved householder in particular hoping to raise enough funds for what is termed a “group action” against the builder. At least one of these aggrieved purchasers has commissioned what is referred to as a highly supportive independent survey and one suspects that others have followed suit.
When civil mediators (not least those at #AlbertSquareMediation who have considerable expertise in the fields of property, engineering, chartered surveying and construction urge people to engage them to help address long-standing disputes, these are exactly the sorts of scenarios that they have in mind.
Albeit with my independent, neutral mediator’s cap pressed firmly on my head, it seems to me that whatever the rights and wrongs, this article identifies a not inconsiderable number of aggrieved householders who have been trying for quite some time to resolve matters. They appear to have been thwarted in their endeavours and possibly one suspects, by a lack of resources. The article mentions solicitors having been contacted but it is not clear whether either individual court actions or a group action will be considered suitable for no-win no-fee arrangements. One implicit implication of the article is that there is no immediate end in sight and I suspect that matters could drag on for some considerable time.
In contrast, nonetheless a panel of suitably qualified and experienced civil mediators would be able to address and compile a detailed schedule of both the complaints about building/constructional defects and any related claims for compensation in a fraction of the time that it would take to get court proceedings started. The need for timeliness and prompt responses could easily be factored into any mediation agreement. Equally, in any final agreement, timescales for completion of any necessary works could be expressly stipulated along with appropriately worded penalty clauses and, both individually and collectively, appropriate, just and fair apologies could be recorded. The chances are that at least in part, existing survey reports could be utilised and that only modest additional experts fees would be incurred. Public bodies such as the authority building regulation departments who may have an interest in individual outcomes could be consulted and if appropriate given the opportunity of participating in the mediation process.
There is no apparent reason why the overall mediation process could not include a “group action” element with nominated spokespeople being part of the mediation process. In the event that agreement could not be reached through mediation, the process could quite simply be changed into a binding adjudication or arbitration. Individuals would need to take legal advice but with mediation to the fore and an arbitration/adjudication option in the background, in practice such input would have a very important part to play. It would be relatively modest and would not be too expensive.
The independence and neutrality of the civil mediation process outlined above will ensure not only that justice is dispensed promptly and very cost-effectively (a saving of around 90% of the costs of any court action) but that everyone would have their say and everyone would be listened to. There would be no prior assumptions and any attendant fact-finding process in which the parties themselves were very much involved, would be very robust. In appropriate cases, meaningful apologies or acceptances of liability could be given in the safe confidential environment that mediation engenders, a situation very far removed from what all too often happens in the full glare of publicity that often surrounds cases such as this. Any unreasonable refusal to use mediation or another form of ADR could result in a court imposing a heavy costs sanction at a later date.
Appropriately worded final agreements which could be accepted as public documents would help ensure that there was no chance of things being ignored or swept under the carpet. Insurers who are all too often expected to foot the bill for such things as expensive court actions and who inevitably recoup these by across-the-board increases in their customers’ annual premiums will doubtless breathe sighs of relief and one anticipates that parties on all “sides” of the scenarios outlined above would in all probability have a much happier 2018.
The #AlbertSquareMediation Civil and Commercial team comprises: Paul, Francesco Albertelli, Ben Beaumont, Joanne Byrne, Russell Foster, David King, Matthias Neuenschwander, David Santiago and Anthony Wooding. Between us we specialise in all aspects of civil and commercial mediation, arbitration and adjudication. We come from a variety of accomplished professional backgrounds including law, the judiciary, surveying, accountancy, engineering, academia, management, public sector management/facilitation and medicine. We are multilingual and with contacts and expertise in many different parts of the world we are international in outlook, very cost effective and are very much geared to the needs of the business community.
Please direct enquiries or expressions of interest to firstname.lastname@example.org or, for an initial, no obligation discussion, please telephone Paul Sandford on 7476 279 307
Principal Director of ASM PLUS, civil/commercial, workplace, employment, family and educational mediator and trainer with a judicial/legal background. He has knowledge and expertise in dispute resolution in a wide range of areas and disciplines and mediates online.