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Reaching conclusions beyond the outer limits of construction law

legal matters

At the December meeting of the Society of Construction Law (SCL), Paul Darling QC, the chairman of the construction courts' Bar Association, (TECBAR) presented a paper entitled 'Construction Law - the Outer Limits', writes Kim Franklin.

Of course, everyone went. They were intrigued by the title, which suggested an intergalactic journey, stopping off at some of the more farflung centres of justice in order to be introduced to some distinctly colourful, if not wholly alien, characters. They were not disappointed.

Darling's theme was, essentially, that there is more to construction law than JCT contracts.

In fact, the principles with which construction lawyers are only too familiar are relevant to some fairly obscure areas of the law. Claims in nuisance, claims brought under statute, for mining subsidence, claims for tree-root damage, insurance disputes, claims under bonds - the list of rich and varied cases, in many of which Darling had featured prominently, went on, ad infinitum, if not beyond.

Musing on this galaxy of unlikely topics, I reflect on developments in construction law over the past 12 months, as seen through the eyes of this column - well, it is that time of year after all. From a selective review of the year's copy, it should come as no surprise to AJ readers that construction law does, indeed, know no limits.

In January we reported how the unfortunate Mr Marcic had lost his battle against Thames Water for new sewers to prevent his garden from flooding when his local outmoded and overstretched sewers overflowed. After a rollercoaster ride through the lower courts, the House of Lords concluded that public bodies do not owe private individuals a common law duty, or Marcic a legal remedy.

February saw the common law theme developed further by the claim of Mr Green, who was literally drunk in the gutter when Ms Bannister reversed her car down a badly lit cul-de-sac and ran him over. The interplay between negligence and contributory negligence was demonstrated when liability was apportioned 40/60, with the inert pedestrian bearing the larger share.

During March, we learned of Mr Goodacre, who had persistently refused to comply with planningenforcement notices and then sued Wealden District Council after it cleared his woodland site of assorted building materials and scrap items including, famously, a derelict Massey Ferguson tractor. The court exonerated Wealden council, and Goodacre's claim for damages failed.

April heralded the boom in construction work in China and alerted readers to the pitfalls of the new regulations on money laundering. In May the industry was introduced to the notion that there should be an industry code for ethical conduct.

In June the important Court of Appeal decision in Halsey hit the headlines, setting out the basis upon which parties should, or should not, seek to mediate disputes, and the consequences, in terms of costs, if they unreasonably did the wrong thing.

The 'silly season' of the summer months was parried by this column, which featured the incomprehensible twaddle written about domestic building contracts in populist magazines, such as BBC Good Homes. By contrast, we paid homage to the sound words of wisdom to be found in the new improved loose-leaf text, Emden's Construction Law. We spotlighted the lonely life of a construction arbitrator and introduced the Society of Construction Arbitrators' new 100day arbitration procedure.

The courts returned to business for the autumn term and seemed to be preoccupied by expert evidence. We had judicial authority for 'experts' reports can be circulated in draft before exchange' together with 'experts should set out the detail of their instructions in their reports'.

In November we were able to report the good news that the new direct access rules meant that anyone could now go direct to a barrister for advice. We also trumpeted the return of Mr Justice Jackson as the new judge in charge of the Technology and Construction Courts.

The combination of a year's worth of legal columns and Darling's address should leave AJ readers, and SCL members alike, in no doubt that construction law is indeed a cosmic subject and that Darling is a supernova of a barrister.

Kim Franklin is a barrister and chartered arbitrator at Crown Office Chambers. Visit www. crownofficechambers. com

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