The latest book on building disputes* is unusual in many ways. It is A4 in format and very thick. Each chapter is numbered separately and some of the pages have multiple numbers. For example, pages 1/156- 162 is in fact just one page. The last page in this chapter is page 1/238, although a page count of chapter 1 reveals that there are 114 actual pages. The apparent discrepancy is due to the fact that the book is loose-leaf and the pagination allows for updates. It is difficult, therefore, to say how many pages there are in the current volume, but in excess of 800 is a safe estimate.
In addition, the chapters are divided into numbered paragraphs which are used for indexing purposes. I cannot say that this arrangement is particularly easy to operate, but where updating is intended, there is probably no real alternative. The book has a good hard binding and the mechanism for inserting and securing new pages is first-class, staying open without effort and without having to be weighted. At first sight, the book may seem too heavy in every sense. Certainly the format could have been improved: two smaller volumes would have been easier to handle. I will not carry it around in my briefcase.
The author is a solicitor with a sound reputation in construction law. He has had a number of well-known figures from the world of construction disputes to assist him in getting the chapters just right. Among them are Judge Humphrey Lloyd, Brian Eggleston and John Sims.
But what of the content? The chapter headings indicate the scope of the work (see below). Chapter 1 contains a potted description of most jct contracts and one or two others. The book's strength, however, lies in procedures. Such things as letters of intent, design, tenders, certification and nomination are covered, together with express and implied terms, payment and, of course, delays, extensions of time and loss and/or expense. A useful idea is the inclusion of precedents at the end of each chapter; in other words, examples of the kinds of notices and other communications examined in the particular chapter.
Since the book is about disputes, it is hardly surprising that there are four chapters dealing with arbitration, litigation, adjudication under the new Housing Grants, Construction and Regeneration Act 1996, and alternative dispute resolution. The book deals with these topics with sufficient thoroughness to satisfy most architects. In addition, there is an interesting chapter dealing with pleadings which will be helpful not only to lawyers pleading construction issues in court, but also to anyone faced with drafting points of claim in arbitrations. There is advice about defects and remedial work, how to eject a contractor or a protester from site and seizure of materials. A telling section, which could be entitled 'modern myths', deals with terms which many people think will, but actually will not, be implied by the courts.
Chapters 7, 8 and 9 are of primary interest to lawyers, being concerned mainly with the Official Referees' court, quick procedures and various kinds of evidence, applications to the court and appeals. These chapters are well worth reading for the architect who may get involved in court procedures in any way. Such things are generally mystifying for the layperson. No book on disputes would be complete without dealing with the expert witness, a role familiar to many architects. The topic is dealt with fully yet concisely.
The book comes complete with a directory of construction lawyers willing to act as arbitrators, mediators and adjudicators and a glossary of terms. Glossaries are usually helpful, but what about this definition of 'architect':
'i Generally, a person entitled to practise or carry on business under any name, style or title containing the word 'architect'. In broad terms, this means someone with the initials riba after his name.
ii In particular the architect with the contractual status under a contract to issue instructions and certificates as to various matters. He may or may not have designed the works; his function is to exercise control over the works as they proceed. Used loosely in this sense, 'architect' can sometimes include any engineer, surveyor or supervising officer with this contractual function.'
I think not. Shall I ring the arb or will you?
This is one of those books which repay browsing. It is difficult to pick up and put down within the hour. One topic leads to another. It would be wrong to say that all contractual knowledge is here, but it is certainly a respectable start. It is written in good English and rarely descends into legal jargon. If an architect does not have either Hudson or Keating, he could do far worse than get Fenwick Elliott. Moreover, it is likely to be updated rather more frequently.
* Building Contract Disputes: Practice and Precedents, by Robert Fenwick Elliott, 1997, FT Law & Tax, £190.00.
David Chappell is a director of contract consultant Chappell-Marshall