There are a few phrases that cause my heart to sink. One is 'who owns the float?' The question immediately conjures up images of critical path analysis, debate as to concurrent causes of delay, and let's face it, mind-bogglingly complicated contractors' claims for delay and disruption.
Conversely, my spirits were lifted by a piece in the Spectator written by a judge complaining about the negative spin put on the judiciary by the media. He told how he had delayed the hearing of a multi-party trial because one barrister had left all his kit behind. The judge was happy to proceed with the barrister appearing without wig and gown, but the barrister was not so happy to proceed without his papers and notes of cross-examination. The local newspaper had the time of its life over the notion that an expensive trial had been delayed because a barrister could not appear in court without robes. It subsequently apologised under the headline 'Delay not caused by wig'.
Another phrase that causes a cold rush of dread is 'the Human Rights Act'.
You will all be aware that the Act came into force at the beginning of October and is heralded as the first legislative embodiment of a Bill of Rights. This is all well and good and, one might think, a jolly good thing for the oppressed and the lawyers who practise in this important field. Construction law is about as far removed from this area of the law as you can get and so, one might also think, the Human Rights Act will have nothing to do with construction. It seems one could not be more wrong.
Article 6 of the Human Rights Convention gives everyone the right to a fair hearing for the determination of their civil rights and obligations. It is this 'right to a fair trial', so fundamental that it almost goes without saying, that has geed up the lawyers.
The traditional construction dispute, if conducted using the full panoply of the law, can take a very long time and a great deal of money to pursue to judgment. In the old days vast, longrunning actions became trial by chequebook more than anything else. These days, however, all manner of initiatives have been introduced to ensure that some sort of answer is given to disputing parties more quickly and cheaply than the Rolls-Royce version. The initiatives include such things as:documents-only arbitrations, where the parties send off their written submissions and supporting documents and the arbitrator sends back the answer in writing;
early neutral evaluation, where the parties submit particular points to a 'neutral'who forms a view from limited documentation and a short, one-day hearing; and our old friend adjudication and the 28-day decision man.
At the same time, many procedural hearings in the courts, for example for leave to appeal from an arbitrator's award, are done on paper now. So an arbitrator can decide your case and the court can refuse to allow you to appeal, without you taking part in any kind of hearing at all. This keeps costs down most effectively, but is it contravening your fundamental right to fair trial? The recent case of Bouygues UKv Dahl Jensen demonstrates the problem. The adjudicator made a mistake worth £350,000 and the paying party had no prospect of redressing the balance later because the receiving party was by then in liquidation.
The extent to which adjudication transcends your fundamental rights has yet to be fully explored. What I find extraordinary is that from the outset our present government has systematically set about undermining the legal profession by reducing its funding, devising dispute resolution procedures which by-pass lawyers, and generally making life difficult, all in the name of saving costs. (This despite the fact that the prime minister, his wife and many colleagues are lawyers and the Lord Chancellor was one of the least 'unfat cats' in practice at the bar. ) Now they have introduced a piece of legislation that will generate so much extra work that they have had to increase the number of judges to cope. Even the construction lawyers will be getting on the bandwagon.