You are what you read and there's space on my shelves
A glance at other people's bookshelves can sometime be very informative. What do they keep close at hand when working?
Many contractual disputes involve looking at standard forms of contract, such as those produced by the Joint Contracts Tribunal (JCT). But when the files are first sent to the lawyers after a dispute has arisen, there is often no copy of the standard form with them. This is sometimes because the parties appear never to have actually owned a copy, despite having agreed that the form would apply. Since it is tricky to advise on a contract unless you know what it says, copies of standard forms have to be kept close by.
Rather than trying to maintain a library of standard forms (an onerous task, not least because most disputes call for a form that is now out of date), we tend to turn to a useful publication called Emden's Construction Law. It contains the text of most of the popular standard forms, including subcontracts, and helpfully identifies which bits have been amended, and when.
Being a loose-leaf work, it is updated regularly - invaluable when you urgently need a copy of DSC/C (JCT domestic subcontract), IFC 98 (JCT intermediate form of contract) or DOM/1 (Construction Confederation domestic subcontract).
Jostling for space next to Emden on the shelf is the new copy of the Architect's Legal Handbook, now in its eighth edition. Written specifically for architects, it covers a huge range of topics that might be encountered by architects in practice, each dealt with by an expert in that field. It covers things as diverse as planning, employment, negligence and party walls.
For the lawyer delving into unfamiliar areas of law, it can provide a useful and focused starting point, the copyright chapter being a particularly noteworthy example.
As for the practising architects at whom the book is aimed, editor Anthony Speight QC makes some key observations in his preface to the new edition. First is the importance of architects being able to recognise when they need legal help. To do that, what is needed is sufficient knowledge of the legal issues that are encountered in architectural practice so that alarm bells sound at the appropriate moment and help can be summoned. Failing to take advice at the right time can be disastrous. In West Faulkner v London Borough of Newham (1994), the architect was empowered under JCT 63 to serve a notice of default on the contractor for failing to proceed regularly and diligently. The architect did not serve a notice because it thought that, for a notice to be proper, the contractor had to have failed to proceed regularly and failed to proceed diligently. The Court of Appeal decided that the architect's construction of the clause was wrong, and held that it should have taken legal advice about what the clause meant. That failure to have sought legal advice was negligent.
Secondly, in recent years there have been significant changes, many brought about by the advent of the Housing Grants Construction and Regeneration Act payment and adjudication procedures. It is essential that architects are up to speed with the law as it now stands. By way of example, Speight refers to the need to serve the 'requisite pieces of paper' (perhaps we should refer to them as RPPs? ), a reference to withholding notices. Regular readers of this column will know that in 2003 the Court of Appeal, in Rupert Morgan v David Jervis, said that failing to tell a client that a withholding notice is needed may amount to negligence (AJ 15.1.04).
The changes wrought by adjudication, and the apparently increasing need to be aware of various dispute resolution methods - including alternative dispute resolution - have led to the introduction of a discrete section of the book to deal with these topics. Litigation, arbitration, adjudication and mediation are addressed.
Incidentally, the new chapter about the adjudication process is a shortened version of Andrew Bartlett QC's highly regarded, and much referred to, adjudication chapter in Emden, which in itself earns Emden a place on the shelf of many construction lawyers.
Meanwhile, there appears to be a gap waiting for a good and up-to-date dictionary of abbreviations geared towards the construction industry.
Does anyone know of one?