On apologies: research by Dr Shiri Lev-Ari from Royal Holloway, University of London, reported in The Guardian (15 September 2025) showed that individuals produce longer words in their apologies than in their non-apologetic communication, presumably to express the effort they are willing to exert to express their remorse and/or correct the situation. Correspondingly, individuals interpret apologies with longer words as more apologetic: ‘An apology may appear more genuine if it costs someone more to say it – and that can mean the time taken to say or type long words’. For helpful suggestions – in a landlord and residential tenant context, but valuable more widely – about drafting and delivering an apology, see Housing Ombudsman Service (England), Apologies Guidance (2026).

On collective action to change the law, see the update above to section [6.2.2] about campaigners who successfully stopped many new homes in England & Wales being sold as long leaseholds; and encouraged legislation to reduce the ground rents on existing leasehold individual homes. For ongoing campaigns for further reform to long leaseholds in multi-unit developments (E&W), see also the Leasehold Knowledge Partnership and Free Leaseholders websites.

(especially for the main text to n 10 about access to justice in the face of typically-slow court or tribunal processes), in relation to cases in the Building List of the County Court of Victoria, para 583 of the Commercial Division Omnibus Practice Note 2025 provides: 

The trial of a proceeding is to be considered the last resort for the disposition of a proceeding. Instead, once a proceeding is issued, the Court’s processes are focussed on the steps necessary to make the parties sufficiently informed to be able to meaningfully engage in a form of appropriate dispute resolution (ADR) as early as possible, in accordance with section V.3.2 below.

Similarly, from VCAT (but, this time as a ‘general observation’ in the course of a decision, by Cook M: Bajaj v Arunachalam [2025] VCAT 1138 [141]-[142]):

Claims in the Building and Property List can be complex and multi-layered, with outcomes difficult to predict until the case is heard in full and deliberated upon. For this reason, parties are strongly encouraged to explore settlement options, even after evidence has been filed in a proceeding or at the commencement of the hearing if offered and feasible.

The operators responsible for home safety (gas, electricity and fire) in the UK note that their success in protecting social housing inhabitants depends on powers to enter buildings where dangers may exist. These access rules are incomplete and inadequate: see Access for Safety, Safety Can’t Wait Outside (May 2026), calling on government to change the law to guarantee access, subject to proper safeguards, clear notice requirements and a consistent process: ‘If the law requires clearly defined safety checks and works, the route to completing them should be equally clear’. As for landlords and entry to check gas appliances, Stonewater Ltd v Harris [2026] EWCC 42 (Judge Glen, Southampton County Court) illustrates the legal uncertainty, with an injunction for specific performance of access terms in the tenancy as the aim. Local authorities used to be able to apply for a warrant (quicker and cheaper) under the UK’s Environmental Protection Act 1990 s 81 and sch 3 (the ‘statutory nuisance’ procedure in E&W – separate provisions for Scotland), but the legality of doing so for gas inspections has become doubtful.

A House of Lords amendment by Lord Best in June 2026 to the Social Housing Bill (E&W) would allow the court to authorise access to a home where a registered provider of social housing needs to comply with specified statutory safety duties. The amendment proposes clear notice requirements, prior requests for access, limits on the purpose of entry and court oversight.

On access for inspection, see also Connexus Homes Ltd v Weaver [2025] EWCA Civ 655 in the update below to section [11.3.1].

Like some of the B2C standard form contracts discussed in this section of the book, the contract between employer and ‘builder’ may define circumstances entitling the employer to terminate the contract, also laying down procedures for doing so. Do such provisions restrict or replace the employer’s existing (default) common law right to terminate the contract – if the ‘builder’ demonstrates an intention not to perform, or commits a serious enough breach of contract? The courts lean in favour of preserving the innocent party’s common law rights – but the contract may exclude or limit them, if doing so clearly. 

In MacDonald & Co Construction v Kharty Property Group [2026] VSC 336, the main contractor under a subcontract failed to follow the contractual written ‘show cause’ procedure, terminating the B2B contract after the subcontractor’s staff behaved aggressively and threateningly at a meeting between key individuals. Craig J concluded that this behaviour put the subcontractor in breach of its fundamental express obligation of good faith and of acting reasonably in carrying out the works: the subcontractor had renunciated the contract, justifying termination at common law by the main contractor without following the subcontract’s formalities. A contract-given discretion, with a linked procedure, may require the party exercising it to act reasonably (and perhaps also honestly): see the update above to section [4.7.3].

From English law, in a closely similar direction, is Whitburn Estates Ltd v Thirteen Homes Ltd [2026] EWHC 1256 (Ch). The buyer under a conditional land contract paid a £245,000 deposit and later purported to terminate the contract. Leech J held that the buyer was not entitled to rely on the contractual termination provision: the failure of the relevant conditions resulted from its own fundamental breach of contract – failing to submit the planning application the contract required. The purported termination was therefore ineffective; the seller had validly accepted what at common law was a repudiatory breach, so was entitled to retain the deposit.

For an equally telling example from NSW, see Neale v Westacres Property Consultants Pty Ltd [2026] NSWDC 209: the owner excluded the builders from site mid-project (purporting to terminate the contract) without reference to the (HIA) standard form contract in place, which protected the builder’s access to the site and laid down a procedure the owner was to follow if they considered the builder in breach. Judge Weber held the owner in breach of an essential term of the contract and their termination therefore ineffective, so the contract remained in place: the owner could claim damages only for defective items (just over A$25,000), not for the cost of completing the project. On this case, see also the update above to section [4.8.3].

In South Australia, Treana Holdings Pty Ltd v Kakkad [2026] SASCA 77 (Bleby, Stanley and B Doyle JJ) raised the difficult issue: if one party (an off-the-plan developer) terminates a contract because of the failure of the other (two buyers of the planned townhouses) to fulfil its obligations, can the termination be challenged if that other party asserts successfully that their own failure related to a failure by the first party to meet its own commitments? The Court expressed the test as: did the terminating party’s breach deprive the terminated party of a ‘substantial chance’ of complying with the contract? (Yes). The ‘substantial chance’ formulation suggests that the yardstick is not as demanding as ‘more probable than not’ – instead, something closer to a loss of a chance. Relevant too was the principle that a contracting party should not benefit from its own breach; on this, see also the updates above to section [4.7.3].

These examples show that termination (and acts which may give rise to termination or a right to treat the contract as being at an end) involves subtle legal principles whose application ‘on the ground’ may be uncertain: no construction party (B2B or B2C) should venture into this area without a clear picture of the issues, the applicable legal framework (which may be ‘common law contractual’, ‘specific contract contractual’, restitutionary or statutory) and of the impact on each side’s rights and remedies of any action already taken or which could be taken.

(especially for the main text to n 110) The Regulator of Social Housing’s ‘nuclear option’ is to remove a provider from the register, under the Housing and Regeneration Act 2008 (E&W) s 118(1)(aa), if the RSH considers that it has failed to meet a standard under ss 193, 194 or 194C. For a (rare) example of these powers in action, see the RSH Press Release of 27 July 2026. The RSH has commissioned research (June 2026) to evaluate the impact on landlords and tenants of the reshaped regulatory regime, introduced in April 2024.

The annual review of complaints made by social housing tenants in England to the Housing Ombudsman Service in 2024-25 notes that by far the largest category of upheld complaints leading to the most serious finding – of severe maladministration – related to housing quality; of all complaints made to the HOS, 71% were upheld in the period.

On the impact of delayed or inadequate repairs on social housing tenants, the Housing Ombudsman Service’s Repairing Trust report (May 2025) already noted that, in England, repairs are the biggest single driver of complaints against landlords and a determining factor of residents’ trust: ‘This reflects how home is an emotional place, and a repair is more than a job’. The HOS investigated 474% more complaints about poor living conditions in 2023-24 than in 2019-20, with poor practice in 72% of cases, though in the same period almost £9bn was spent on repairs and maintenance.

In December 2025, the MHCLG launched a consultation on Housing Disrepair Claims (E only), wishing to make tenants’ claims in the County Court against landlords more effective. It highlighted the role in that process played by commercial organisations offering claims management facilities and techniques: ‘there may be cases where unscrupulous activity is resulting in vulnerable tenants being exploited’.

Further implementing proposals in the Social Housing White Paper, the UK Government announced in July 2025 that it intended to direct the Regulator to impose new Social Tenant Access to Information Requirements (STAIRs) on private registered providers of social housing under the Social Housing (Regulation) Act 2023 (mostly E&W only) s 25; partial implementation will be from 1 October 2026 and full implementation from 1 April 2027. 

(especially for n 112) The Housing (Scotland) Act 2025 was adopted in November 2025; see the update above to section [4.16.4].

(especially for the main text to n 121) In July 2026, the HOS published a report on the results of its monitoring of the Complaints Handling Code for the Code’s first two years.

Regulation by professional bodies: one of the functions of the Architects Registration Board (UK) is to protect the legally restricted title ‘architect’ (but not the design functions usually undertaken by architects) and act against those who use the title but are not registered with ARB. Its Year in Review 2024 records that 586 cases were opened against those misusing the title ‘architect’.

The annual data for 2024-25 for complaints to the UK’s Financial Ombudsman Service suggest 398 complaints about ‘building guarantees’ newly arriving (a tiny fraction of the 45,606 insurance-related complaints). Of these warranty complaints, 41% were upheld (higher than the overall 34% success rate). Figures for Q1 2025-26 show 81 new complaints arriving about such warranties (out of a global total of 68,000), of which 53% were upheld. A helpful online guide from FOS outlines the kinds of complaints consumers bring before it against third-party warranty providers in construction, and when; and how FOS deals with them. A different picture of success rates appears from the analysis of individual complaints against the NHBC summarised in the update above to section [6.8.2].

The book states: ‘The [FOS] service is free (no entry fee, and no exposure to the respondent’s costs)’. From 1 April 2025, the FOS introduced a new charging model for Professional Representatives (PRs), such as claims management companies and legal firms, bringing complaints on behalf of consumers. Once a PR submits more than 10 complaints in a financial year, a fee of £250 is charged for each additional case (reduced to £75 if the complaint is upheld). This fee does not apply to complaints brought directly by consumers or by informal representatives such as friends, family members, charities or voluntary organisations, nor to PRs acting entirely pro bono. This charge followed a significant increase in complaints submitted by PRs: many poorly prepared or later withdrawn, putting pressure on the FOS’s resources and contributes to delays for other complainants. The fee aims to encourage PRs to submit better-prepared complaints and to focus on cases with genuine merit. It also ensures that those who benefit financially from the complaints process contribute to its cost. ‘Mass claims’ by PRs to the FOS were the background to claims for damages in Vanquis Bank Ltd v TMS Legal Ltd [2025] EWHC 1599 (KB).

In August 2025, the FOS published a further consultation paper about the fees charged to respondents: Evolving Our Funding Model. This raises the possibility of a more differentiated fee structure, in which fees would be lower, the earlier in the FOS process a case is resolved.

In July 2025, the Treasury published its own Review of the Financial Ombudsman Service; the FCA and FOS itself jointly did similarly in Modernising the Redress System (Consultation Paper CP25/22). The Treasury started from industry stakeholders’ view that the UK’s dispute resolution framework for financial services creates uncertainty, which impacts investment in UK financial services and inhibits innovation by firms, as well as having a knock-on effect on consumers as firms may offer fewer or less innovative products due to concerns about potential future redress. Consumer stakeholders have also criticised unpredictable redress outcomes as unhelpful to consumers. 

The remedies proposed include: a fixed longstop time limit for complaining to FOS – on which see the update below to section [10.1.3]; a new threshold test before a complaint is investigated; modifying the ‘fair and reasonable test’ so that compliance (where relevant) with the FCA’s rules and guidance will count as ‘fair and reasonable’; giving the FOS power to ask the FCA to interpret its own rules, including at the parties’ own request (one example of better cooperation and coordination between the FOS and FCA) and to ask the courts’ for a view on important questions of law; giving the FOS wider powers to dismiss a complaint better dealt with by another route (an existing ‘consumer redress scheme’); providing better machinery for ‘mass events’; lowering the interest rates for delay compensation; and attempts to reduce the delay before an FOS decision. No change is proposed to the upper limit for compensation to successful complainants. The review also suggests ways in which the principles and themes behind the 20,000 or more decisions a year could be made more transparent and accessible, without abandoning the need to publish each individual decision. Many of these changes are included in – or will be enabled by – Part 2 of the Financial Services and Markets Bill (2026) (UK). The result may limit the powers and effectiveness of the FOS (to be renamed just the Financial Ombudsman), notably by narrowing the ‘fair and reasonable’ test, to the benefit of the financial services industry but to the detriment of consumers.

(especially for n 146) Applying to the FOS does not stop time passing for the possibility of a claim in court, so a wise consumer will have an eye on the applicable limitation period for litigation – see section 10.5 and its updates below – while waiting for a determination from the FOS.

(especially for n 147 and its main text) On Clark v In Focus Asset Management & Tax Solutions Ltd, see now Bhundia v Dhar [2025] EWHC 1227 (Ch). At [155]ff, Judge Barber held that the temporarily binding quality of the decision of a UK adjudicator under the HGCRA 1996 (UK) does not attract the doctrines of merger or res judicata - unlike the statutory status of FOS determinations in Clark.

On the UK’s Financial Ombudsman Service and new home warranty providers, see also the updates above to sections [6.8.2] and [7.2.6].

Victoria’s Building Amendment (Rectification Orders) Regulations 2026, along with a Ministerial Direction (S344, 25 June 2026) provide guidance to the Building and Plumbing Commission about how it exercises its powers under pt 5A of the Building Act 1993 (Vic) (as foreshadowed in n 151). 

For an illustration of the complexity and fraught nature of accusations of professional misconduct by regulators, see Snart v Victorian Building Authority [2026] VCAT 650 – the VBA being found not to have sufficient grounds to have brought the action it did against a building surveyor in relation to his approval of combustible cladding.

The Commons Justice Committee Review – see the update below to section [9.8] – noted increased numbers of litigants in person in the County Court in England & Wales; seldom well informed about procedure, they add extra demands on court staff and judges and create delay. The House of Lords Select Committee on the Constitution said the same in its November 2025 report on The Rule of Law at [194]. The wide availability of generative AI, with its unreliability in analysing (sometimes inventing) legal materials, is certain to encourage more people to undertake litigation as litigants in person, increasing the threats to the integrity of the legal system which AI used by lawyers – taken to know better – already pose. 

For costs rules allowing litigants in person to recover their costs in court proceedings (E&W), see the CPR r 46.5 - also applicable to tribunal proceedings when the tribunal (exceptionally) decides to award costs: see Senada Ziga v Darren Stuart Yarnold [2026] UKUT 181 (LC).

For a helpful summary of what a civil judge does at trial and the issues of burden and standard of proof, the judge as umpire and the fallibility of memory (Gestmin) – drafted specifically to inform the lay parties in the property dispute before him – see Judge Paul Matthews in O’Driscoll v Clayton [2025] EWHC 2607 (Ch) at [21]ff or in Rogers v Wills [2025] EWHC 1367 (Ch) at [9]ff; also Judge Richard Carter in Shan v Registrar of Companies [2026] EWHC 1058 (Ch) at [22]ff: a family share-ownership dispute reaching back ten years, with few contemporaneous documents surviving and the witness best placed to explain matters dying in 2022, the case turning almost entirely on credibility. In the closely similar Australian context, see Monland Pty Ltd v Oman [2026] VSC 240 (Waller J) at [102]ff. On evidence issues, see also the update below to section [9.7.2].

On the extent of a judge’s obligation to assist a litigant in person, see Chalik v Chalik [2025] NSWCA 136 [65]ff (Bell CJ considering conflicting views from other NSW judges); also Monteleone v Warren [2026] VSC 423 at [76]ff (Craig J). The position in English law, deriving at apex court level from Barton v Wright Hassall LLP [2018] UKSC 12, is summarised more recently by Judge Paul Matthews in Crushcov v Hyland [2025] EWHC 1117 (Ch):

[4] In most cases, a litigant in person will not be able to express his or her case with the clarity and precision of the professional lawyer. The judge will therefore take extra care to try to understand exactly what that case is. But, having once understood it, the judge cannot reformulate the case, just to make it more potent, let alone invent a new case in place of that put forward. The case to be judged must be the case which the litigant wishes to put.

[5] As the Supreme Court made clear in Barton, there are no special privileges attached to being a litigant in person. I cannot, for example, advise the litigant what to do, or otherwise ‘look after’ his or her interests. Nor can I add weight to the litigant in person’s case in order to compensate for the fact that he or she has no legal training, or has a fulltime job and therefore less time to prepare, or does not have access to the library, IT or backup facilities that lawyers have available. Equality of arms for this purpose is equality of procedural opportunity. All I can do is to take the cases made by each side at face value, and decide accordingly.

In 2024, The Judicial College (E&W) published the first online edition of its Equal Treatment Bench Book (updated 2025), seeking to ‘inform, assist and guide’ judges in being fair: 

Fair treatment does not mean treating everyone in the same way during court proceedings; it is about taking any necessary additional steps to aid participation and achieve best evidence. For example, a [litigant in person] with little understanding of law and procedure is not in a comparable situation to a King’s Counsel (KC). 

Ch 1 of the Bench Book specifically concerns litigants in person and lay representatives. The Equality Act 2010 (mostly E, W and Scotland only) in some situations requires those in public positions to make ‘reasonable adjustments’ for individuals; it has an exemption for judicial procedures, but case law shows that judges regard their common law duty to be fair as including such ‘adjustments’, where justified: Sharma v University of Nottingham [2025] EWCA Civ 1457.

(especially for n 170) The legal system’s reliance on the parties to choose the legal framework for their case (as well as the evidence to put forward) means that the court or tribunal in its judgment or decision may not rely on legal points that the parties could have relied on, but in fact did not. Doing so could form grounds for a successful appeal, despite the general principle limiting challenges to what the first-instance judicial body has decided, or how: see section [9.8] in the book (especially the main text to n 246) and its update below. In Advanced Multi-Technology for Medical Industry (t/a Hitex) v Uniserve Ltd [2025] EWCA Civ 1212 at [48], Males LJ (with whom Phillips and Snowden LJJ concurred) relied approvingly on Dyson LJ in Al-Medenni v Mars Ltd [2005] EWCA Civ 1041 at [21]:

It is fundamental to our adversarial system of justice that the parties should clearly identify the issues that arise in the litigation, so that each has the opportunity of responding to the points made by the other. The function of the judge is to adjudicate on those issues alone. The parties may have their own reasons for limiting the issues or presenting them in a certain way. The judge can invite, and even encourage, the parties to recast or modify the issues. But if they refuse to do so, the judge must respect that decision. One consequence of this may be that the judge is compelled to reject a claim on the basis on which it is advanced, although he or she is of the opinion that it would have succeeded if it had been advanced on a different basis. Such an outcome may be unattractive, but any other approach leads to uncertainty and potentially real unfairness.

For construction specialists, there is a more nuanced approach to a similar issue (a failed challenge to an adjudication as a breach of natural justice after the adjudicator adopted a ‘fair and reasonable’ approach to valuing a claim) in Clegg Food Projects Ltd v Prestige Car Direct Properties Ltd [2025] EWHC 2173 (TCC). For a successful ‘natural justice’ claim, leading the TCC to refuse summary enforcement of an adjudicator’s decision in a B2B construction context, see Premier Modular Ltd v Maidstone and Tunbridge Wells NHS Trust [2026] EWHC 1404 (TCC) (Adrian Williamson KC). On the narrow scope for challenging an adjudicator’s decision at the enforcement stage, see also the update below to section [9.9.1].

(especially for the main text to n 166) The 2026 edition of the TCC Guide maintains the same text at section 4.9.

(especially for n 166) On McKenzie friends in Northern Ireland, see Patterson v Rathfriland Farmers Co-Operative Society Ltd (Ruling: McKenzie Friend Application) [2025] NICA 14.

(especially for n 172) For the principles justifying an award of costs on the indemnity basis in English law, see Three Rivers District Council v Governor and Company of the Bank of England [2006] EWHC 816 (Comm) at [25] (Tomlinson J), applied by Nicklin J in the high-profile litigation by Prince Harry and others against the Mail newspaper (August 2026); also by Sarah Clarke KC after Amy Winehouse’s father’s claims against two of the deceased singer’s friends failed following a six-day trial: Winehouse v Parry [2026] EWHC 1970 (KB) at [54]ff. Like Nicklin J in the Prince Harry case, she also held that the losing claimant should immediately pay each defendant a substantial sum (in this case, 90% of budgeted costs and 75% of unbudgeted costs) on account of costs. For examples in the book of costs being awarded on the indemnity basis, see section [5.6.6]ff; n 107 in section [9.4.4]; n 194 in section [9.7.1]; and n 296 in section [9.9.5]. 

(especially for n 177) In May 2025, the Chartered Institute of Arbitrators (UK) published a consultation version of a Guideline on Third Party Funding – for both litigation and arbitration. In June 2025, the Civil Justice Council (E&W) published its Review of Litigation Funding: Final Report, recommending legislative reversal retrospectively and prospectively of PACCAR and reform of litigation funding generally, where provided by an individual or a business who is not a party’s legal representative (litigation funders) for the purposes of dispute resolution. On the present law, see also Sony Interactive Entertainment Europe Ltd v Alex Neill Class Representative Ltd [2025] EWCA Civ 841 (consolidated appeals from the Competition Appeal Tribunal).

(especially for the main text to n 180) On the Pre-Action Protocol for Construction and Engineering Disputes, see also the update below to section [9.8].

(especially for the main text to n 186ff) Two further examples of judicial encouragement towards ADR come from hearings on preliminary issues in English cases where one round of mediation had already been unsuccessful. In Heyes v Holt [2024] EWHC 779 (Ch), parties to a property dispute had unsuccessfully attempted mediation before proceedings were issued. Judge Paul Matthews ordered them to make a second attempt, hoping to avoid a trial on the merits:

[50] ... This is a case which cries out for mediation by the parties. I am aware that mediation has already been attempted between the parties… and on that occasion it failed. I commend them nevertheless for trying. But that was before the claim had even been issued. Now that the parties have full pleadings and disclosure, as well as (for what it may be worth) this judgment, the parties should try again. I will order a stay for that purpose.

In a libel action between neighbours, Francis v Pearson [2024] EWHC 605 (KB), Judge Lewis similarly recommended the parties to ‘try, try again’: 

[88] Experience shows that it is often in entrenched cases such as this that ADR can make a real difference, often requiring honest conversations with parties as to the merits of their respective cases, and the potential downsides, as well as looking at pragmatic ways forward … 

[91] The parties need to reflect on the reasons why the cases did not settle at mediation, and the costs of continuing this litigation – not just in terms of money, but the personal costs to each party for example from the time and energy spent fighting, the stress and worry the proceedings might cause, particularly in respect of outcomes, and the impact that it is going to have on the wider community in which they live. 

[92] I would strongly recommend that the parties re-consider some form of alternative dispute resolution process – which might include further mediation, or some other way of facilitating agreement – before matters in this case move forward and further costs are incurred.

See also the update above to section [3.1.1] for ADR issues in relation to Grenfell Tower litigation.

(especially for n 178) In a B2B construction-related professional negligence case, MJS Projects (March) Ltd v RPS Consulting Services Ltd [2026] EWHC 884 (TCC), Judge Kelly summarised the general costs rules, and their application to ADR in Halsey. These included, at [9]: 

(2) ... the burden is on the unsuccessful party to establish why the court should do that [apply a costs sanction]. ADR is not appropriate in every case and there is no presumption in favour of mediation as the preferred method of ADR. The fact that a party reasonably believes that they have a strong case is relevant to the question of whether they acted reasonably in refusing ADR. However, the mere fact of success at trial does not mean that the claim was unsuitable for ADR. 

(4) A failure to engage in ADR, even if unreasonable, does not automatically result in a costs penalty. It is one of the factors to take into account when exercising the discretion about costs. The question is whether the conduct as a whole is unreasonable. Making and standing by a reasonable offer may not be unreasonable conduct in the light of the ultimate judgment. A refusal to mediate or to accept an offer made when a party is then successful simply means the parties have lost an opportunity to resolve the case without a hearing…

Having analysed the parties’ pre-trial conduct in detail, she declined to penalise in costs the winning defendant’s refusal to engage with mediation, noting that the projected cost of mediation (each side had budgeted £25,000) was high relative to the claim (close to £324,000).

(especially for n 189) Exemplified by MJS Projects above, case law in England is developing rapidly on scenarios which may (or may not) expose losing litigants (especially individual claimants) to costs sanctions for failing to undertake a form of ADR, though none so far are about residential construction disputes. For an unsuccessful attempt by a claimant losing at trial to limit their exposure to costs, arguing that the successful defendants ought to have engaged with settlement offers and ADR, see Grijns v Grijns [2025] EWHC 2853 (Ch). Master Bowles characterised the claimant’s case as so weak as to justify a costs order against them on the indemnity basis; the defendants were justified in not negotiating on any of the claimant’s offers to settle and would have been justified in refusing to mediate. By contrast, a losing defamation claimant was liable for the defendant’s costs only on the normal – not indemnity – basis; that they followed a judge’s encouragement in offering to mediate (to which the defendants did not respond) was one factor in the outcome: Rodoy v Optical Express Ltd [2026] EWHC 1486 (KB) (Griffiths J). See also Fisher v Fisher [2026] EWHC 1508 (Ch) at [64]ff (Chief Master Shuman).

On mediations, the resulting settlement agreements and ‘satellite litigation’, see The Pentagon Food Group Ltd v B Cadman Ltd [2024] EWHC 2513 (Comm), discussed in the update above to section [4.5.1]. 

The House of Lords Select Committee on the Constitution offered a nuanced view about the value of ADR in its November 2025 report, The Rule of Law at [213] (footnotes omitted):

[D]espite the use of alternative dispute resolution being increasingly encouraged within the civil justice system, there are times when access to a court is more appropriate. There may be an inherent power imbalance in some relationships, such as between a landlord and their tenant, an individual and their local authority, or employer and employee. When a dispute arises, the stronger party may place pressure on the other to mediate and resolve the dispute without going to court. They are also more likely to have access to legal advice. In these instances, there is a risk that the weaker party forgoes their legal rights and accepts an unfair solution.

For other aspects of the same point, see the Blind Justice report summarised in the update below to section [9.14].

On proof in general, and how the court weighs evidence, especially when this is oral only – as often happens in B2C projects for modest works of home improvement, maintenance or repair which do not attract statutory regulation, like Scenario 3 in Table 1.2 – see Mohamed Faizal JC in Tao Yuegang v United Tec Construction Pte Ltd [2025] SGHC 124: 

[29] In this case [a damages claim for personal injury caused by an alleged workplace accident], the assessment of the Claimant’s credibility is especially critical as he represents the singular factual witness for his version of events while the Defendant [employer] has called a variety of witness in support of the narrative it advances. To be clear, the mere fact that one side is able to provide multiple witnesses while the other is able to put forth just one is far from determinative. This is because the strength of evidence lies not in numbers but in the quality, consistency, and credibility of the witness(es). A single witness, if reliable, consistent, and credible may be viewed by the court as having far greater probative value than a chorus of voices that are speculative, contradictory or otherwise tainted by bias or self-interest. The law does not weigh evidence by volume or numbers but through the lenses of veracity; what matters is not how many speak, but the consistency and credibility of the story that is being told.

For a discussion of the burden of proof, and how it may be discharged by different types of evidence, see Croft J in LL UP Pty Ltd v Kegland Distribution Ltd [2024] VSC 651 [16]ff – referring to Gestmin (n 199).

On giving a party permission to bring expert evidence, the overall position in English law is summarised by Fancourt J in Cohen v Co-Operative Food Group [2025] EWHC 526 (Ch) at [35]:

The court is under a duty [under CPR 35.1] to limit expert evidence to that which is admissible and reasonably required to resolve the proceedings. Even if the evidence is not necessary to resolve an issue, it may still be admitted if it will be of assistance in determine that issue and so is reasonably required. The decision to permit or refuse expert evidence is an evaluative judgment taking into account all relevant circumstances and proportionality ...

On the same issue, see also The RBS Rights Issue Litigation [2015] EWHC 3433 (Ch) (Hildyard J and Chief Master Marsh).

On expert witnesses, the UK-based Academy of Experts warns, following regular judicial criticism, against experts appearing to advocate for ‘their’ side’s case. A dramatic English example is Freeman v Home Farm Ellingham Ltd [2025] EWHC 878 (Ch), where Judge Claire Jackson ruled one expert’s evidence inadmissible as failing to comply with CPR Part 35. At [41] she labelled his approach as:

[N]ot impartial but rather acted to prefer the interest of the Claimant as his client and to advocate a case for it. This lack of impartiality affected both the preparation and presentation of [his] evidence, his assessment of the evidence and his findings. 

In an earlier example in a B2B construction context, the whole of an expert’s evidence was rejected as ‘entirely worthless’: see Van Oord UK Ltd v Allseas UK Ltd [2015] EWHC 3074 (TCC) at [80]ff (Coulson J). The many other recent TCC cases where experts’ general credibility and conduct have been key to the determination of the case are listed in Samuel Townend KC’s Master’s Address 2026 to The Worshipful Company of Arbitrators; the lecture summarises the reasons for current problems with expert witnesses and offers solutions.

In Hired Gun? (LinkedIn, 2025) the Academy points out: 

[E]xpert evidence is very important to the courts and experts are rightly held to very high standards, so a good starting point to is to try to avoid even such mild criticism. The simplest way to do this is to read your own report as though you were the other side’s expert. Are there gaps in your reasoning? Is there evidence that might contradict your conclusions? If you’ve discounted witness evidence or documents, why have you done that? Is it justified? Have you set too high or too low a standard for professional conduct in your analysis?

The Academy’s Judicial Committee publishes detailed guidance for expert witnesses in jurisdictions which use experts in civil cases the way most common law systems do, including a Model Form of Expert’s Report, available for purchase. In July 2026, the RICS published the 5th edition of its guidance for Surveyors Acting as Expert Witnesses. On expert evidence in construction litigation in E&W, see also section 14 of the TCC Guide 2026, which also considers situations where a single joint expert may be appropriate.

Judges also regularly express concern that, where the case depends heavily on testimony rather than documents, witnesses of fact make the court’s job harder by failing to comply with the official guidelines for drafting their witness statements (in English law, under the CPR Practice Directions 32 and 57AC). In Skycomish Ltd v Gerald Eve LLP [2025] EWHC 1031 (Ch), a negligent valuation case, Richard Farnhill (as a Deputy High Court Judge) pointed out how closely the wording of two of the claimants’ witness statements overlapped, suggesting that neither was their own words; a third witness simply adopted a fourth witness’s recollection and version of events. At [24] he concluded, in effect pointing the finger at the claimants’ legal team: 

[I]t would be unfair to impute these failings onto the individual witnesses themselves, none of whom are legally qualified and none of whom can therefore be expected to know the details either of the rules of evidence in general or the provisions of PD 32 and PD 57AC governing trial witness statements in particular. These points do go to their credibility, however – they call into question the extent to which their recollection has been contaminated because Mr Tellwright, Mr Taylor and Ms Ilett have obviously, to some extent, been led to adopt a description of the relevant events in terms other than their own.

As in the items above, the judge also criticised one expert witness for acting as an advocate for the party which had appointed her; the whole claim failed in the end.

(especially for n 173) In civil litigation in E&W, the ordinary ‘costs follow the event’ rule does not apply to claims for less than £10k allocated to the small claims track. In those, there is no costs order unless the court finds a party has ‘behaved unreasonably’: for a striking example of David & Goliath litigation, Goliath failing in its attempts to get David to pay its costs, see Orton v Barclays Bank UK PLC [2026] EWCA Civ 1025.

(especially for n 181) The digitisation of court processes risks creating new barriers for litigants in person: Blind Justice, a pressure group, suggests that ‘unrepresented users [of court systems] lack professional intermediaries to mitigate administrative error’ – where documents are not logged correctly, correspondence unanswered or incorrect advice is given: Nick Hilborne, ‘Complex Court Processes “Shut Out Litigants in Person”’ Legal Futures (19 December 2025). On the new Online Procedure Rules in E&W, see the update below to section [9.14].

(especially for the main text to n 198) A similar result will follow if a corporate defendant, having engaged with the pre-trial process, filed a defence etc, then withdraws from all participation in the action, its parent company liquidating the SPV defendant. The residential building owner is then almost certain to be successful in court in claiming damages for construction defects: see One Hyde Park Ltd v Laing O'Rourke Construction South Ltd [2026] EWHC 155 (TCC) (Jefford J). If the defects constitute ‘building safety risks’, the next step may be to apply for a Remediation Contribution Order against the parent company under the BSA 2022 s 124: see Table 11.1 of the book, n 100 and its updates below; or perhaps a Building Liability Order under the BSA 2022 s 130ff: see the update below to section [11.5].

(especially for the main text to n 202) Scots law uses contrasting terminology, under the Act of Sederunt (Taxation of Judicial Expenses Rules) 2019 (SSI 2019/75): these speak of the court ‘certifying skilled persons’ in relation to judicial proceedings; their remuneration may then be treated as part of the ‘expenses’ (costs) of a case. A couple in West Lothian bought a home from its developer; on finding numerous defects, they successfully gained judgment against the developer for £500,000, relying on reports from a range of experts. The developer was by then insolvent, so they started a new action (ongoing) claiming £1m against the architect who had provided them with PCCs attesting to build quality (on PCCs, see Case Study 7 at section [5.9] in the book). Could they continue to use the seven experts already ‘on board’ from their first action, the Court now ‘certifying’ them for the action against the architect? And could these experts’ fees already incurred now become expenses in their action against the architect? In Spence v Graham [2025] CSOH 108, Lord Braid took the pursuers’ side (disallowing one only of the experts, whose relevance to the issues in the case was not clear). At [11] he said:

[I]t was both reasonable and proportionate that a range of experts be instructed to cover the panoply of defects said to exist; and indeed, in principle, it was both reasonable and proportionate, and probably necessary, to instruct expert evidence before the action was raised. Insofar as the instruction of these particular experts is concerned, it cannot possibly be a bar to their being instructed in this action that they were previously instructed by the same pursuers in a different action. So to hold would be to require the pursuers to have instructed a whole raft of new experts which would achieve the very opposite of economy in litigation...

On using expert evidence to prove the value of a building (or the impact of defects on its value) via ‘comparable sales’, see the judgment of the Western Australia Court of Appeal in Fitzroy River v Tucker [2025] WASCA 118 at [66]ff, relying heavily on Megarry J in English Exporters (London) Ltd v Eldonwall Ltd [1973] 1 Ch 415.

In a challenge to a trial judge’s conclusions which allegedly disregarded the report of a single joint expert, Eyre J in Azizi v Dama Construction Ltd [2025] EWHC 2213 (TCC) rejected the challenge, saying at [35]:

[A] judge is not bound by expert evidence, even the evidence of a single joint expert. However, a judge must have regard to such evidence in respect of issues to which it is relevant and if the judge is to differ from the view of the expert on such an issue, then an explanation of the reason for doing so must be given. However, findings of fact and the determination of legal responsibility are matters for the judge and not the expert. It may be the case that findings on one or both of those matters mean that the expert evidence is irrelevant to the findings which have to be made. In such a case a judge does not have to follow the ex hypothesi irrelevant expert evidence nor is it necessary to engage in the exercise of explaining in detail why that is not being done.

On the planned introduction in NZ of a statutory system of proportionate liability in building cases, see the update above to section [5.13.3].

(especially for n 210) The operation in English law of the Civil Liability (Contribution) Act 1978 was considered in URS v BDW [2025] UKSC 21. Lord Leggatt confirmed at [212]: 

[T]he right of D1 to recover contribution from D2 arises when (1) damage has been suffered by C for which D1 and D2 are each liable and (2) D1 has paid or been ordered or agreed to pay compensation in respect of the damage to C. At that point, but not before, D1 is entitled to recover contribution from D2 and the two-year limitation period within which any claim for contribution must be brought begins. There is no further requirement that, before an action can be brought, D1’s liability to pay compensation to C and the amount which D1 is liable to pay in compensation must have been established by a judgment against D1, an admission by D1 or a settlement agreement between D1 and C.

For contribution claims derived from defective cladding, relying on the new English statutory framework, see Mullaley & Co Ltd v STO Ltd [2026] EWHC 1552 (TCC), discussed in the update above to section [5.7.3].

The value to the UK economy of the international standing of English law, its courts and judges, and the need to promote English law’s positive aspects worldwide, were given a new impetus by a report to the MoJ (UK) on Harnessing English Law for Economic Growth, launched by the Deputy Prime Minister and Minister of Justice in March 2026. This followed the 2025 creation of the English Law Promotion Panel, its members drawn from legal, academic and business communities.

From 1 October 2026, the TCC is to become part of the new Business and Property Division of the High Court (E&W), replacing the Chancery Division: see the update below to the Glossary.

In November 2025, a consultants’ report to the Ministry of Justice (UK), The Benefits of an Open and Competitive Legal Economy, stressed the contribution the legal sector makes to the economy, notably via work internationally, but noted the problems homeowners and home buyers as consumers confront in seeking appropriate legal advice:

There are more law firms and lawyers than ever. All parts of the legal sector have been subject to increased competition, both from other lawyers (from elsewhere in the UK and abroad) and from non-lawyer new entrants to the sector. Clients and consumers have benefited from more choice and transparency in the sector. However, there are concerns about how well distributed the benefits of a more open and competitive legal sector have been. Delivering affordable and accessible consumer facing legal services in the face of growing demand remains a challenge ... Legislative or regulatory intervention may be needed to support society’s access to justice needs. The market alone has not been able to meet these needs.

These conclusions are echoed for the formal justice system (courts and tribunals) in England & Wales by a report on research by the Nuffield Foundation: People’s Experiences and Views of the Justice System (July 2026), painting a picture of individuals’ needs for information, assistance and emotional support not being met and negatively impacted by recent cost cutting on the justice system; but many judges help how users perceive the system. On litigants in person in E&W, see the updates above to section [9.7.1].

In May 2026, a further report for the MoJ (UK) summarised existing literature on types of free assistance (including information, signposting, advice and practical support) provided in E&W by charities, law centres and other not-for-profit organisations to help individuals understand and resolve civil, family and tribunal-related legal problems. Evidence on the Effectiveness of Legal Support Service Delivery concludes that no single delivery model works well for all people or all problems. Different models add value in different contexts, but the strongest evidence of impact comes from coordinated, well resourced services that combine multiple delivery models within clear pathways, enabling escalation and sustained engagement when needed. The report does not include legal aid for lawyers’ fees, but the current scope of civil legal aid in E&W makes it barely relevant to our field.

(especially for the main text to n 226) The 2026 TCC Guide updates the existing guidance (notably making clear that claims before the London TCC with a value of less than £100,000 risk being transferred to the TCC List of the Central London County Court). The Guide newly includes items suggested in 2025 by the judiciary’s Building Safety Act Working Group, clarifying its application to cases involving the BSA 2022 (section 9 of the Guide), as well as warnings against the use of AI (section 1.6) and an expanded emphasis on ADR (section 7), with a draft ADR Order as Appendix E. On collaboration between the TCC and FTT in BSA cases, see Wallace Estates v Durkan Estates in the update below to section [11.5].

(especially for n 227) On the near collapse of County Courts in England & Wales, its causes and remedies, see the House of Commons Select Committee on Justice, Work of the County Court (HC 677, July 2025): ‘a dysfunctional operation that has failed to adequately deliver civil justice’.

To appeal to the Court of Appeal (Civil Division) in England & Wales in most cases requires permission, from the first-instance court or the Court of Appeal itself. To ask the CA for permission to appeal, the court fee is now (July 2026) £663; £1,504 if a lower court or tribunal has already given permission: see also HMCTS, Appeal to the Court of Appeal Civil Division (updated April 2025). The fee must be paid before the expiry of the time limit for lodging an appeal. Help with fees is available to those not legally aided and on benefits: Court of Appeal (Civil Division) Guide 2025 [2.48].

For a summary of appeal courts’ approaches to challenges of first instance judges’ findings of fact, see Wise v Wise [2025] WASCA 98 at [18] (Thompson P); for the English Court of Appeal’s firm reluctance to allow similar challenges – including to the trial judge’s evaluation of factual or expert evidence – in a request for Permission To Appeal, especially from a TCC judgment, see LZLabs GmbH v IBM UK Ltd [2025] EWCA Civ 842 at [19]ff (Coulson LJ, with whom Males LJ concurred). For an example of a failed challenge on appeal in a construction case, where the TCC judge had to decide between one party arguing an oral agreement, the other relying on a JCT standard form, see EJW Builders Ltd v Marshall [2026] EWCA Civ 911; for a more detailed analysis of types of challenge on appeal and the court’s willingness to intervene, see Honda Australia Pty Ltd v Brighton Automotive Holdings Pty Ltd [2026] VSCA 142 at [23]ff. 

On the UK Supreme Court’s unwillingness to disturb ‘concurrent’ findings of fact – those established both at first instance and on appeal in the same case – see R v Perry [2025] UKSC 17, [2025] 1 WLR 2055 at [33]-[35].

(especially for n 233) The creation in 2016 under the Courts Reform (Scotland) Act 2014 of the Sheriff Appeal Court for civil cases has meant that fewer of these now reach the Court of Session (notably the Inner House); even fewer Scottish civil appeals reach the Supreme Court (leave now being required). Lord Doherty suggested in the 2026 Lord Rodger Memorial Lecture that the future development of Scots law may be threatened by these trends.

(especially for n 235) The 2025 Judicial Statistics for Northern Ireland (June 2026) similarly reveal no data about construction-related litigation, nor about applications to enforce decisions by adjudicators in construction cases.

(especially for the main text to n 237) Figures for delay in the TCC in June 2026 record only a few weeks’ wait for a short applications hearing (not more than half a day) before a judge; three months for a case management conference (up to half a day); four months for a trial of up to three days; but nine months or longer for a longer trial.

(especially for the main text to n 241) The Ministry of Justice publishes helpful guidance (for E&W) on ‘What to Do if You Have a Judgment but the Defendant has Not Paid’. This explains the available types of enforcement machinery, but also lists factors (paraphrased here) which those considering becoming claimants should consider, ahead of starting litigation:

• Are you likely to get your money and court fee from the defendant?
• Does the defendant owe other people money or has other court judgments against them?
• Does the defendant own any goods or assets which can be taken and sold at auction?
• Is the defendant working (as an employee)?
• Does the defendant have other earnings, such as income from investments?
• Does the defendant have a bank, building society or other account?
• Does the defendant own property (such as a house)?

On the impact of assignment of the benefit of a UK construction contract, the assignee’s right to refer a dispute to adjudication and their ability to claim the protection of the ‘residential occupier exception’, see the update above to section [5.3.2].

On the power of an adjudicator also to determine a claim under the Defective Premises Act 1972 (E&W), see the update above to section [5.10.2].

On the ‘provisionally binding’ character of a UK construction adjudicator’s decision, see the update above to section [9.6.1].

(especially for n 253) On Ardmore Construction, see also the update above to section [5.10.2].

(especially for n 257) On the limited scope for challenging an adjudicator’s decision in Northern Ireland, following English authorities, see Piperhill Construction Ltd v Northern Ireland Housing Executive [2025] NIKB 47 (Humphreys J).

(especially for n 261) For an example of Scottish judges’ approach to challenges to an adjudicator’s award (decision), arguing that an adjudicator has violated the principles of natural justice by going on ‘a frolic of his own’, see Entexol Ltd v Sked Construction Ltd [2026] CSOH 80 (Lord Lake). 

(especially for the main text to n 263) A useful summary of the existing case law recognising possible grounds for resisting enforcement of an adjudicator’s decision comes from Judge Kelly in Clegg Food Projects Ltd v Prestige Car Direct Properties Ltd [2025] EWHC 2173 (TCC) at [11]; see also the updates above to section [9.7.1] and below to section [9.9.5]. In High Tech Construction Ltd v WLP Trading and Marketing Ltd [2026] EWHC 152 (TCC), Constable J refused summary enforcement of an adjudicator’s decision, the respondent bringing evidence (more than had been before the adjudicator) that the contract on which the referring party and adjudicator had both relied did not in fact exist and that the work had been done on a different contractual basis. If the respondent could make out this claim, the adjudicator would have had no jurisdiction, so to enforce the decision immediately – in advance of the contract issues being determined – was inappropriate.

(especially for the main text to n 265) On challenges in court on natural justice grounds to adjudicators’ decisions, see also the update above to section [9.7.1].

The residential occupier exception in relation to construction adjudication in the UK: building contractor RBH made a contract with the employers Mr & Mrs James to demolish an old house in Devon and build a new one. Before the new house was complete, the parties fell out and the builder left the site. With over £1m already paid, and the payment terms not contested (though the contract was entirely oral, including no dispute resolution provisions), RBH requested payment of an additional £660,000+, to which the employers responded with ‘a notice of intention to withhold payment’, detailing their reasons for doing so and referring to the 1998 Scheme for Construction Contracts. 

When RBH launched an adjudication, the James argued that they were (intending) ‘residential occupiers’ of the new house, so protected by the statutory exception. The adjudicator disagreed, as well as with what they claimed was a ‘pay less’ notice, so awarded the sum claimed to RBH, who then went to the TCC to have the decision summarily enforced – met by the James arguing for a declaration that the adjudication was a nullity in law.

In RBH Building Contractors Ltd v James [2025] EWHC 2005 (TCC), Neil Moody KC (Deputy High Court Judge) held that the James had a realistic prospect of success in arguing that they were protected by the ‘residential occupier exception’, so refused to enforce the adjudicator’s decision; whether they were so protected would only be resolved in later proceedings. This would require a detailed analysis of the factual background, with many relevant factors: 

• The employers asserted at the adjudication (though not before) that they were protected by the HGCRA 1996 s 106 (so had not ‘submitted to the jurisdiction’ of the adjudicator).
• They might be able to persuade a judge that they did intend to live in the new house when they entered the contract with RBH (according to Judge Moody, this was the key moment, following Coulson J in Westfields Construction Ltd v Lewis [2013] EWHC 376 (TCC)), so the fact that they put the house on the market when the project went sour (having already sold a home in Essex and living in a caravan during the build) would not take them out of the exception, if they otherwise qualified.
• It did not disqualify them from relying on s 106 that Mrs James alone was registered as the owner of the site, or that they originally intended to rent the house out on Airbnb for part of the year and had no other home, nor even that under the terms of a loan to finance the project they declared having no intention to live in the eventual house. 

But the judge was not willing to overturn the adjudicator’s decision on fees, for which liability was shared jointly and severally with the James. Would ‘the builders’ now start a fresh court action – as they could – already knowing a version of the arguments the employers would deploy as a defence (which the judge was willing to treat as a valid ‘pay less’ notice)? Instead, they launched an appeal against the judgment, reported as RBH v James [2026] EWCA Civ 511.

The judgment in the CA was from Coulson LJ (Males and King LJJ concurring). In the TCC he had decided Westfields Construction Piling Ltd v Lewis (above, and discussed in section [9.9.2] of the book): there, as in all recorded earlier attempts, the individual construction employers failed to bring themselves within the protection of s 106. In the new case, did the employers agreeing contractually with their funders that they would not live there exclude their intention to occupy the new home when built – vital to get them within s 106? One earlier authority suggested that if occupying the home was illegal (in that case, by contravening planning permission), that excluded the situation from s 106. Another feature of the new case was analysis of comparable but different ‘intention to occupy’ statutory tests: under the Landlord & Tenant Act 1954 s 30(1)(g) and the Housing Act 1985 s 118. 

Armed with all that authority, Coulson LJ laid down at [52] a set of principles for deciding claims where s 106 is relied on; these are not revolutionary, but will be key in all future cases. Notably, he held that the legal position between the Jameses and their funder was not automatically fatal, nor was their intention to rent out the home via Airbnb for part of the year; these were merely aspects of the total factual and evidential background which had to be weighed. However, this part of the appeal was only on whether the judge below correctly refused to enforce the decision of the adjudicator, awarding over £600,000 against the James. This refusal stood: the CA gave no final determination whether the Jameses did or did not qualify for the exception, though their chances of success now looked stronger. The builders remained (we assume) unpaid, newly at risk of the costs of their unsuccessful appeal. Unless the parties settled, continued (or newly started) traditional court action, leaving aside the adjudication proceedings and the HGCRA payment provisions, must have been a possibility.

(especially for n 295) For an insider’s view on the surprising frequency of jurisdictional challenges within adjudications and adjudicators’ responses (and the effect on the dispute itself) in the UK and Ireland, see Jonathan Cope, ‘Jurisdictional Challenges: How Often Do They Occur, and What Can We Learn from Them?’ (MCMS Blog, November 2025). 

(especially for n 298) On the dangers of failing to take part in an adjudication – coupled with a restatement of the limited grounds for challenging the decision of an adjudicator – see Construction Muzzy Ltd v Davis Construction (South East) Ltd [2025] EWHC 2258 (TCC); see also the update above to section [9.9.1].

(especially for n 299) For the high threshold facing a losing party in an adjudication who attempts to argue that a breach of natural justice occurred, see Project One London Ltd v VMA Services Ltd [2025] EWHC 3304 (TCC); see also the updates above to section [9.7.1].

(especially for n 344): issues as to whether VCAT loses its jurisdiction in respect of residential construction disputes where a federal matter is raised continue to arise: see, eg, Skordakis v Victorian Building Authority [2026] VSC 342; Chinnappan v Hometec Industries Pty Ltd [2026] VCC 651, Kirton J in the latter observing in relation to the policy conundrum (at [70]):

It cannot have been Parliament’s intention to give this Court jurisdiction to resolve domestic building disputes under the DBCA, but no power to order restitution under these sections. Nor can Parliament have intended that when a proceeding is legitimately in this Court, a builder must issue a separate proceeding in VCAT, to be managed and heard in this Court, requiring a judge ‘wearing two hats’, ongoing coordination between the heads of the Building Cases List in this Court and the Land and Environment Division in VCAT, and the cost and time of registries and support staff in both jurisdictions. Government has not allocated any extra resources to this Court or to VCAT to implement such an intent.

(especially for n 351) See also Nasseri v Wellington Builders Pty Ltd [2024] VSC 200 and Jos Mulcahy, ‘The Victorian Security of Payment Legislation - When is a Residential Owner in the Business of Building Residences?’ (2024) 33(7) Australian Construction Law Bulletin 50.

Black Label Developments Pty Ltd v McMenemy [2025] NSWCA 114 illustrates (on facts labelled by McHugh JA as ‘singular’) the balancing act between keeping cashflow moving (per A-Civil: the main text to n 354) and consumer protection. The Court favoured the latter by granting the homeowners a stay on being required to pay an adjudicated amount (via the NSW security of payment scheme), where this was based upon a variation to the home building contract arguably procured by an actionable vitiating factor, such as unconscionable dealing or duress.

(especially for n 353) The Building Legislation Amendment (Fairer Payments on Jobsites and Other Matters) Act 2025 (Vic)’s amendments to the Victorian security of payment legislation (see n 348) and existing contracts mostly came into force on 15 April 2026. These amendments are extensive, but do not include modification to the ‘residential occupier exception’; this issue remains to be considered in future amendments.

Statutory adjudication in NZ: in 2025, the Building Disputes Tribunal (Te Taraipuniara Tautohe Hanga Whare) published a review of its experience as a leading Authorised Nominating Authority over the regime’s first twenty years. Tracking the Trends reports that the largest category of claimants has been main contractors (not the expected subcontractors), who also form 43% of all respondents. Homeowners, as expected, form only a small category: 17% of claimants and 21% of respondents. 59% of all claimants seek a determination of the other party’s liability to pay money, with 4% seeking a determination of rights and obligations and 37% seeking both. Only 14% of cases lead to a jurisdictional challenge – successful in only 2% of cases. Adjudicators’ costs are between 17 and 19% of the amount claimed – low enough for 31% of all claims to be brought under the BDT’s Low Value Claim Scheme (current limit NZ$100,000; average duration 28.7 days); more than half all claims are for between NZ$30,000 and NZ$350,000 (average duration 44.7 days, involving an extension of time). 80% of claimants are represented and 78% of respondents (overwhelmingly by lawyers). In 80% of cases, both parties had to pay the adjudicator’s fees.

(especially for n 410) For recent discussion of the scope for court challenges to adjudicators’ decisions (notably interim relief against enforcement), about what will be NZ’s tallest residential building, see Shundi Customs Ltd v Green [2024] NZHC 3345 (Blanchard J).

(especially for the main text to n 419) In Connaughton v Timber Frame Projects Ltd [2025] IEHC 469 the High Court (Garrett Simons J) held that a common law claim for (unliquidated) damages for breach of contract, made by the innocent party who had accepted the other party’s repudiatory breach and terminated the contract, was not ‘a dispute relating to payment’ (Construction Contracts Act 2013 (Ire) s 6(1)), the contract otherwise qualifying under the 2013 Act. The judge held at [20]:

[T]he referring party must either be asserting or resisting a claim to be paid an amount which is provided for under the construction contract, ie a payment which is expressed or stipulated in the terms of the contract. 

There being no right to adjudicate, the adjudicator had no jurisdiction: the resulting decision was a nullity and would not be enforced. This judgment is under appeal (judgment not yet published in August 2026).

The importance procedurally to civil litigation of the declaration under the Mediation Act 2017 s 14 was emphasised by Twomey J in V Media DOO v Techads Media Ltd [2025] IEHC 430 (Commercial Court): 

5. ... under s 14(3) a court must adjourn a hearing if the proceedings were issued without the accompanying Mediation Declaration, so as to enable the mediation advice to be provided. In effect therefore, the courts must refuse to hear a case, if there is no evidence that the plaintiff was provided with the requisite advice to consider mediation.

6. While all of this amounts to a clear restriction on the constitutional right of access to the courts, it is clearly justified, since it is in the interests of prospective litigants. This is because it is as an attempt by the Oireachtas to ensure that litigation is a last resort, rather than a first resort, in order to save prospective litigants tens/hundreds of thousands of euros in legal costs and the many years of lost time and effort.

Doctoral research by Bill Holohan SC in 2024 showed that most Irish solicitors are unaware of their obligation under the Mediation Act 2017 to advise clients about the advantages and benefits of mediation (including the speed with which mediation can take place) and the considerable costs savings that can result. Even those who are aware are selective in their level of compliance, assuming (incorrectly) that there are no adverse consequences for them or their clients for failing to comply and to advise clients properly. Under the Legal Services Regulation Act 2015 s 169(1)(g), a party may be penalised in costs if they act unreasonably in refusing to engage in settlement discussions or mediation, with comparable provisions about mediation in the 2017 Act s 21: see Byrne v Arnold [2024] IEHC 308 (Kennedy J); solicitors can be made personally liable for wasted costs; can be in breach of their professional obligations, leading to Legal Services Regulatory Authority sanctions; and can be liable in negligence. A new High Court Practice Direction HC141 (in effect from 3 June 2026) reminds solicitors of the requirements of the 2017 Act and other provisions on ADR; warns of the judges’ approach to non-compliance; and now specifically requires the necessary 2017 Act certificate in place before a solicitor seeks a hearing date.

In 2026, Twomey J gave new judicial encouragement to mediation in civil cases generally in his 72-page judgment in J Burke & Associates Ltd v O’Connell [2026] IEHC 314. He held that, though s 6(2) of the 2017 Act states that participation in mediation is voluntary and s 16 speaks only of ‘inviting’ the parties to consider mediation, this did not displace the Court ’s inherent power to require parties to engage in mediation, on its own motion or on application by a party. The judgment treats Churchill from English law as being of persuasive authority in relation to ADR generally, as well as an early post-Churchill court-ordered mediation case, DKH Retail Ltd v City Football Group [2024] EWHC 3231 (Ch). Twomey J quotes both at length; they are discussed in the book’s sections [9.7.1] and [9.14].

Burke was a contract dispute between a farmer and an engineer about unpaid fees, already running for 10 years but about to be set down for trial in the High Court. As Twomey J points out, costs (starting with brief fees) would be a multiple, rather than a fraction (if mediation worked), of the value of the dispute (€252,004). The impact on the parties of such costs, as well as on them personally of such drawn-out litigation, were strong reasons in favour of mediation. 

Noting that all the plaintiff asked was for the court to require the defendant to attend mediation – not to pursue it to a settlement – Twomey J held that to do so in appropriate cases was to allow the court to make best use of its own resources, so a matter of public interest. At most this would delay a litigant’s ability to exercise their right of access to court and to a fair trial, protected by the Irish Constitution and the ECHR art 6. And to encourage individual litigants towards settlement in turn protected other citizens by increasing their access to court for those disputes which need a hearing. 

Twomey J at [50]: 

[I]f a judge did not have that power, and had to proceed with the litigation, even though she knew mediation could obviate the need for litigation, this would be akin to a surgeon being obliged to proceed with surgery, and all its attendant risks, even though she believed that non-invasive treatment could avoid the need for surgery.

The court therefore had a power to order mediation, with a discretion in each case to decide whether doing so was justified. In the exercise of this discretion, the judge treated the factors suggested in Churchill as equally relevant in Ireland: they argued in this case in favour of mediation, despite the costs and time already spent. But when the court learnt that the defendant’s solicitor had, with conditions as to costs, offered to agree to mediation, Twomey J held that it was premature to order this right away.

The focus now shifts to other judges in civil cases – notably in the Irish Court of Appeal: will they follow this reasoning and recognise this wide power to order mediation? What about other forms of ADR? At some point a party unhappy at being ordered to mediate will challenge this as inconsistent with the 2017 Act and the Practice Direction; but those who do mediate under judicial pressure and whose disputes then settle (or at least reduce the issues still outstanding) may thank Twomey J when they reflect on the costs, time and stress saved.

On access to legal advice and representation, many regions of Ireland outside cities are increasingly ‘legal deserts’, with no or few solicitors’ firms present – whatever their areas of practice. 479 of 581 recent trainee solicitors accepted contracts in Dublin, as reported by the Irish Independent (13 August 2026).

On litigants in person in Ireland, individuals’ right of access to the court is protected by the Constitution art 40.3, the ECHR art 6 and potentially also the UN Convention on the Rights of People with Disabilities (UNCRPD) art 13. On appeal in Kane v Judge of the Circuit Court [2026] IECA 54, a criminal defendant who dismissed her legal team and whose trial judge then refused her an adjournment in order to prepare her case was given leave to challenge her conviction by judicial review. Butler J, giving the judgment of the Court, said at [21]:

Whilst a litigant who chooses to proceed in person is not entitled to preferential treatment over litigants who are legally represented, it is certainly arguable that a litigant-in-person who also has a disability may require greater accommodations than would otherwise be the case to ensure that their right of access to the courts is fully vindicated.

(especially for the main text to n 438) Involvement of a solicitor is almost always essential in Ireland to issue proceedings, but Peter Shanley SC has established a new legal partnership, Barristers Direct, which aims to encourage direct access by the client if litigation is unnecessary or unlikely: Irish Legal News (21 May 2025)

The power to dismiss civil proceedings ‘for want of prosecution’ (‘inordinate and inexcusable delay’ is one formulation of the trigger): one of the largest categories of Irish civil litigation involves defendants attempting to invoke the courts’ power to do this, notably in building defects claims, with Primor v Stokes Kennedy Crowley (n 439) as one of the leading cases. A high-level contribution to the discussion comes from a seven-judge panel of the Irish Supreme Court (Collins J dissenting in part) in Kirwan v Connors [2025] IESC 21. O’Donnell CJ summarises the lessons at [7]:

[T]he experience of the 30 years since Primor was decided has shown that the test has not achieved the objectives for which it was devised; ... it would be highly desirable that the Rules of the Superior Courts should be amended to include specific provisions setting out the circumstances in which a case may be dismissed for want of prosecution; and ... whatever approach is taken, whether amended and adjusted Primor (Hogan J), or by reference to Order 122 Rule 11 (Murray J) or existing Primor jurisprudence (Collins J) the result is the same: both the High Court and Court of Appeal were correct to dismiss both the 2013 and 2012 proceedings [in the case before the IESC, relating back to events in 2005-2006!].

An early application of this judicial rethink led to an action being struck out in Nowak v The Institute of Chartered Accountants in Ireland [2025] IEHC 408. Barry O’Donnell J said at [35]: ‘Absent agreement or a court order, it is not open to the plaintiff to force a defendant to wait until the plaintiff is ready to pursue a particular case’. (Mr Nowak is a serial litigant who later had another action struck out for want of prosecution and an Isaac Wunder order – see n 59 in section [1.6] of the book – made against him in relation to all other litigation: Nowak v The Courts Service of Ireland [2025] IEHC 484). The Supreme Court’s starting point for dismissal, at two years of inactivity, was confirmed and applied in Denis Guilfoyle Developments Ltd v Wardrop [2025] IEHC 414 (a B2B construction case) and to a potential appeal in O'Kelly v McGovern [2025] IEHC 704. In McAteer v The Tanyard Development Co [2026] IECA 38, the Court of Appeal (Hyland J, with whom Whelan and Collins JJ concurred) distilled the range of conclusions in Kirwan at [17]:

• The law should recognise the passage of time is important and can justify dismissal of a claim without more.
• If there is total inactivity for 2 years, the case should only be dismissed if the claim is an abuse of process or there is prejudice to the defendant such as would ground an application under the O’Domhnaill v Merrick [1984] IR 151 jurisdiction.
• After 2 years of total inactivity, a claim may be dismissed for want of prosecution, but it is only likely to be if a defendant can point to some additional prejudice or other factor pointing towards dismissal.
• If there is 4 years of total inactivity, the claim should be dismissed if it is dependent on oral evidence unless the plaintiff can show compelling reasons why it should not be dismissed. There is no need to point to specific prejudice: the plaintiff bears the burden of showing why the case can proceed.
• If there is 5 years plus of cumulative and unexplained delay, including a block of 2 years of complete procedural inactivity (as per paragraph 54 of the judgment of Murray J), it should be dismissed unless there is a pressing exigency of justice that requires the case goes to trial.

The Court of Appeal (Civil Division) (E&W) may recommend parties to mediate. It also has an Automatic Referral Scheme, like the first-instance Compulsory Automatic Referral to Mediation (CARM) scheme. This runs via CEDR (including online) and applies to defined classes of case, eg all involving a litigant in person (other than family and immigration cases) and contractual disputes with a judgment or claim value of up to £500,000. Each party taking part must pay an additional fee: Court of Appeal (Civil Division) Guide 2025 [9.7]ff. 

The Guide makes clear that the Master of the Rolls and the Court of Appeal regard as significant the court recommending parties to mediate, or the court identifying the case as suitable for mediation under the Automatic Referral Scheme. If a party chooses to ignore such recommendation or automatic referral, or rejects another party’s invitation to mediate, and if such rejection is found to be unreasonable, the court can take this into account under CPR 44.5 when deciding what costs order should be made; it can even result in a costs sanction against parties who otherwise succeed in their appeal.

Moves to create a Digital Justice System – under way in England & Wales – raise concerns about creating new barriers for consumers (potential claimants or defendants) who cannot afford legal advice and who do not have reliable access to services offered only (or primarily) online, or who are not skilled in managing digital interfaces with outside organisations. In May 2025, the Futures Group of the Civil Justice Council (E&W) published a report on Digital Disadvantage, exploring the meaning of this recently coined phrase and its links with broader ‘access to justice’ themes. In parallel, the CJC has a Working Group examining the use of AI in preparing court documents, as many litigants in person are already doing (with mixed results). 

Similar worries are linked to new pressures to mediate, where attendance is compulsory but meaningful engagement is not. In June 2026, Blind Justice published Settle or be Struck Out, arguing that a represented company or repeat-player defendant can attend, concede nothing, gather intelligence, delay proceedings and leave without adverse consequence, because mediation is confidential and what happens there cannot ordinarily be shown to the court. Meanwhile, the costs consequences for ‘unreasonable’ conduct fall primarily on the litigant in person who refuses mediation or insists on the hearing they are legally entitled to. They do not fall in the same way on the represented party who attends simply to stonewall. For other aspects of the same point, see the quotation from the House of Lords Select Committee on the Constitution in the update above to section [9.7.1].

(especially for n 454) On group litigation in Scotland, and the appointment of a representative party, Mackay v Nissan Motor Co was heard before the Inner House at [2025] CSIH 14 (Lord Pentland giving the Opinion of the Court, rebuffing the challenge to the Outer House decision). The issues were further discussed in Bell v Volvo Car Corporation [2025] CSOH 64 (Lord Sandison) and Donnelly v Johnson & Johnson Medical Ltd [2025] CSOH 77 (Lord Young).

(especially for the main text to n 461) Correction: what the book calls Civil Automatic Referral to Mediation (CARM) is actually Compulsory Automatic Referral to Mediation; the Pilot has been extended to April 2027. Early figures show the expected increase in numbers of cases referred to mediation, but a settlement rate lower than would have been expected and no impact on the backlog of small claims (Tony Guise on LinkedIn, August 2026). 

(especially for the main text to n 465) Encouraging non-court-dispute-resolution in civil cases in E&W and protecting unrepresented parties who may be digitally disadvantaged are key features of the Online Procedure Rules, coming into force for possession proceedings (only) – with a draft Practice Direction – on 7 September 2026. The Rules’ Overriding Objective is ‘to promote access to justice by enabling disputes to be resolved by digital means (before or after the start of legal proceedings) quickly, efficiently, fairly and at proportionate cost’. Under r 6, the court or tribunal must seek to:

(a) manage online proceedings actively so that they are dealt with quickly and fairly;

(b) make sure that all parties and witnesses, whether vulnerable or not, can fully participate in online proceedings and give their best evidence;

(c) make sure that all parties are on an equal footing and are treated fairly;

(d) promote all forms of dispute resolution in and out of court or tribunal;

(e) find ways to make sure that online proceedings are dealt with proportionately to the value, importance and complexity of the case, the court’s resources and the financial position of each party;

(f) make sure everyone obeys rules, practice directions and court orders;

(g) allow reasonable public access to court and tribunal decision-making.

Comparable duties rest on the parties under r 8.