Charting the rise of experts - paid to master complexity
Before the late Donald Keating qc produced his book on Building Contracts, and the law of tort really took off after Anns v Merton in the late 1970s, there was no such thing as construction law. By the early 1990s when the rollercoaster of tort finally ran out of steam, construction was well established as a legal specialisation. If evidence is needed, it can be found in the amount of printed material now available to construction lawyers. The Building Law Reports were first published in 1976, with four volumes a year. The title has recently been acquired by Lloyds of London Press which has relaunched it with a new editorial team which will be churning out 10 volumes a year. Not to be outdone, the old editorial team has been snapped up by Sweet & Maxwell which will produce, bi-monthly, Technology and Construction Court Law Reports. My own Construction Law Journal has increased from four to six issues a year and the Construction Industry Law Letter, which once blazed a trail with 10 pithy issues, now looks rather sad and flimsy.
Those aspiring to the title of 'construction law specialist' usually know a bit about contract law and a lot about the standard forms and the conditions of appointment for construction professionals. They are familiar with the workings and idiosyncrasies of the industry, understand construction methods for buildings and can, if required, get their heads around some of the most technically complex evidence going. They can master the facts of any particular project, but, save for a few practitioners with dual qualifications or the occasional boffin, they leave the real nitty gritty of why it went wrong to the experts.
There are some areas of construction law where the divisions between law, practice and expert opinion become blurred: programming is a good example. Before the 1980s critical-path programming was available only to those with access to mainframe computers. Since then, as computer software has developed, programming methods have become more and more sophisticated. Now programmes can readily be produced at the push of a button, whether in the optimistic pre-contract 'win-win' period or during the acrimonious post-contract fall out. During this second stage, programming experts step in to produce a plethora of charts demonstrating how the job could have been completed months before the contractual completion date, if only the contractor had been allowed to get on with the job. It is worth stepping back and considering the role of the programme and of the programming expert.
The practice of producing highly optimistic programmes with an early completion date (or float) is, it seems, on the increase. Once it has been approved by the architect or engineer, the contractor then uses the document to augment his delay claim (for actual delay, plus float). The more onerous the contract provisions for the production and approval of the programme, the more likely the contractor is to believe that he is entitled to carry out the works as programmed. In fact, his only contractual entitlement is to complete the works within the period specified in the contract. The programme is not contractually binding. Its main purpose is to enable the employer, or architect, to co-ordinate the works. Should push come to shove, and the parties fall out irretrievably over ownership of the float, the programme will be evidence of the sequence in which the contractor envisaged carrying out the works. Whether it was reasonable or achievable is another matter. A delay claim will not succeed, however, unless the contractor can also demonstrate how the events complained of caused the delay alleged. The programme experts are called upon to produce 'as built' programmes and 'critical path analyses'. Given, however, that these programmes are only visual representations of the facts of any particular project, some believe that the evidence of the programmers is not expert evidence at all. They have done no more than master the facts of a complex situation, something which the parties can, and perhaps ought to, do for themselves.