THE OPPORTUNITIES FOR THE QUANTITY SURVEYOR IN THE CONSTRUCTION DISPUTE RESOLUTION PROCESS

Lim Chong Fong
Azman Davidson & Co.

This paper was presented at QS National Convention 2003, 18-19 August 2003 at Sheraton Hotels and Towers, Subang Jaya, Selangor, Malaysia.

Introduction

1. This paper discusses the opportunities open to quantity surveyors in the construction dispute resolution process.

2. Construction disputes are nowadays a common feature. By and large the disputes that revolve around the industry are well known and will invariably concern the 4Ds i.e. delay, defect, design and/or determination. The dispute resolution process is always protracted and is increasingly becoming more sophisticated and legalistic with time.

3. The role of the quantity surveyor in this process presently appears limited to that of a factual witness testifying in arbitration or litigation on the traditional measurement and valuation of work as the consultant quantity surveyor for the employer.

4. That notwithstanding, there exist wide and tremendous opportunities for the quantity surveyor to participate in a bigger way as :-

(i) an expert advising and testifying for the contractor or the employer in arbitration or in court on :-
    (a) delay analysis;
    (b) computation and presentation of prolongation claims;
    (c) computation and presentation of disruption and acceleration claims;
    (d) methodology and cost analysis of defect rectification

(ii) a representative of the contractor or the employer in the prosecution or defence of the disputes in arbitration.
(iii) as a mediator.
(iv) as an arbitrator.
(v) as an adjudicator.

An Expert

5. The expert witness primarily gives opinion evidence at the trial in Court or arbitration proceedings. In Syed Abu Bakar bin Ahmad v Public Prosecutor [1984] 2 MLJ 19 @ 23, it was lucidly held that “There are however cases in which the Court is not in a position to form a correct judgment without help of persons who have acquired skill or experience on a particular subject, e.g. when the question involved is beyond the range of common experience or common knowledge or when special study of a subject or special training or special experience therein is necessary. In such cases, the help of experts is required.”

6. The role demands for a quantity surveyor who is sufficiently skilled and/or experienced in the subject matter besides being well conversant with the principles set out in The Ikarian Reefer [1993] 2 Lloyds Rep 68 and [1995] 1 Lloyds Rep 455 on the duty of an expert witness.

7. Many quantity surveyors have concentrated on the cost management but have limited knowledge and exposure in the time management aspects of a building project. That notwithstanding, the other professionals are in a no better position. As most projects do not complete on time, there are always disputes arising therefrom pertaining to the causes, effects and consequences of the delay. The law on the grant of extension of time has been clarified in John Barker Construction Ltd v London Portman Hotel Ltd 83 BLR 31 @ 62 that “There has to be a logical analysis in a calculated methodical way of the impact which the relevant matters had or were likely to have on the contractor’s planned programme rather than an impressionistic assessment of time where the architect thought was reasonable for the various items claimed by the contractor individually and on an overall basis.” In other words, the delay analysis has to be approached in a scientific and methodical basis and this gives rise to new opportunities for those who are keen to specialize in it. This is of course closely connected with the preparation or assessment of prolongation, disruption and acceleration claims where there is presently equal lacking in expertise.

8. The other growing area in construction disputes is on building defects and there is dearth of expertise in repair methodology and its costing besides the diagnosis of the problem which is presently and usually the purview of the architect or engineer. This is a good opportunity for specialization for quantity surveyors whose strength is in building technology and survey.

A representative of a party

9. By reason of the case of Government of Malaysia v Zublin Muhibbah Joint Venture [1990] 3 MLJ 125, it is permissible for non lawyers to represent parties in Malaysian arbitration proceedings. Be that as it may, arbitration proceedings nowadays are conducted mirror imaging the court procedure and it is imperative for quantity surveyors seeking to be a party’s representative to have a working knowledge of the law of civil procedure and evidence besides the substantive law of contract. A good command of advocacy is also to be expected. There are wide opportunities here as many lawyers are hesitant to get into the technical aspects of construction disputes.

A Mediator

10. The mediator may generally be described as the person who facilitates the resolution of a dispute and the mediator is expected in this regard to look into all circumstances particularly the commercial interest rather than the legal position of the parties. The quantity surveyor who seeks to be a mediator should therefore be a very experienced person besides being well respected by the parties in order to be able to make an effective settlement recommendation for adoption by them.

An Arbitrator

11. Most construction contracts contain an arbitration clause for referral of disputes to arbitration. As opposed to a mediator, the arbitrator is expected to decide a dispute between the parties in the form of an award by looking strictly at the legal rights of the parties. The arbitration process nowadays usually resembles civil proceedings in Court. There are many construction disputes but there is a dearth of good construction arbitrators who are well versed with both technical discipline and the law.

An Adjudicator

12. The adjudication process has presently made tremendous impact in the construction dispute resolution in the UK and is bound to take off in Malaysia some time in the future. It basically calls for a person to make a swift decision on a construction dispute referred by the disputing parties. The adjudicator’s decision is temporarily binding unless reversed in arbitration or by the Court. The process is said to have been very successful and 70% of the adjudicated cases do not proceed further to arbitration or litigation. The skill required of an adjudicator should be similar to that of a construction arbitrator.

Key words: QS opportunities, dispute resolution