Those looking for an easy answer might not get the one they expect
As the book reviews editor of the Construction Law Journal, I receive a regular sample of the publishing output that serves the long-standing love affair between the construction industry and the law, writes Kim Franklin. Published texts range from the indispensable, such as Keating on Building Contracts and Jackson and Powell's Professional Negligence, through the practical commentaries on arbitration, adjudication and the various standard forms of contract, to the downright bizarre, such as Legal Frameworks for the Built Environment and Total Information Systems Management: A European Approach.
There is also a steady stream of reference books designed to solve all contractual problems with a flick of the page. A prime example is PowellSmith's Contract Documentation for Contractors, which sets out, in splendidly user-friendly style, a letter for all construction contract occasions.
The hapless contractors have to do no more than pick their way through the various multiple-choice options of contractual provisions and fill in the blanks and, hey presto, they have successfully determined their contract (under JCT 98/WCD/IFC98 - delete as appropriate), largely oblivious to the contractual ramifications of what they have done.
Such an approach calls to mind trying to find one's way across London with only a pocket-sized A-Z as a guide or single-handedly attempting to rebuild a modern motorcycle with only the assistance of a Haynes manual: both of which I have attempted and would not recommend. The notion that Contract Documentation for Contractors was something of a joke book was confirmed beyond peradventure when, on opening the review copy, I found that its contents had been bound in upside down.
I was reminded of this irreconcilable tension between the complexities of construction law and the constant need for easy answers when contemplating the programme for a 'contractual awareness event' being promoted by a well-known construction consultant, which rejoiced under title of the '26 Contractual Nightmares'. The promoters are to be commended, not only for settling on so intriguing a number, but also because the seminar programme and fee suggest all 26 can be solved within three hours, at the rate of £3.25 (plus VAT) each.
The 'nightmares' reward closer scrutiny. Here are some examples:
l A contractor starts work on receiving a letter of intent. Can he recover payment if the project is abandoned before a contract is entered into?
l If payment is not made when due, is a contractor entitled to walk off site?
l Is a contractor obliged to correct defects that come to light after the official defects list has been issued at the end of the defects period?
l Can an architect refuse to grant a certificate of completion on the grounds of defective work, even if the facility can be used by the employer?
What we have, in fact, is a long list of exam questions, taken in isolation from any factual, commercial and, most importantly, contractual situation. They may as well have asked: 'My partner has pranged the car.
Can I recover on my insurance policy?' The answer to these and all the other contractual conundrums thrown up by construction projects across the globe is simple. First of all, you must establish the terms of the contract between the parties. The contractual provisions then have to be married up to the particular facts of the given problem and considered against the background of general principles of contract law, in the light of decided cases on the point. The likely legal outcome has to be weighed against the commercial position and interests of the relevant parties. The achievability of the desired objective is then assessed, given the personalities of the decision makers involved, and a strategy devised that takes into account all of the above, either with or without (depending on the motives of the questioner) the application of general common sense.
As you can see, those searching reference books and attending contractual awareness seminars for easy answers will not be disappointed: in every case, the answer is 'it depends'.
Kim Franklin is a barrister and chartered arbitrator at Crown Office Chambers. Visit www. crownofficechambers. com For details on '26 Contractual Nightmares', email Knowles Training Division at seminars@jrknowles. com