In the good old days of Anns v Merton and Junior Books and Vietchi, life was hard but simple: you could be sued by virtually anyone, but at least you knew where you stood. Gradually the courts have stepped back, to the point where only in exceptional circumstances could a case that was founded on economic loss be brought in tort. So lawyers went to work drafting extensive collateral contracts of warranty. Nigel Brown's book* sets out to explain the phenomenon, but in my view none too well.
The author clarifies the difficulties inherent in the drafting of well- balanced collateral warranties. He does express his doubts as to whether a system that is based upon protection of the participants rather than a quest for value has a future. However, the Contracts (Rights of Third Parties) Bill currently passing through Parliament may shortly upset his conclusion that, notwithstanding these problems, collateral warranties are here to stay.
From a beautifully written introduction of this second edition, the quality of the text descends rather rapidly into a very thin exposition on consultants' standard contracts of appointment and the terms of some of the standard forms of building contract - the book is only 100 pages in all. The basic obligations which collateral warranties are designed to spread are contained in primary contracts of appointment and these, at least, should have been covered in depth.
The sections on consultants' appointments and building contracts are inconsistent in approach on the responsibilities of the various parties. For example, the author offers no authority for his view that the architect is responsible for supervising design consultants and that the only responsibility a developer has is to pay the bills. Unfortunately this may provide some unwarranted solace to those developers who like to proceed on the basis that once they have signed the contract all risk passes to someone else.
Keith Pickavance is an architect and arbitrator. * Let the Builder Beware - A Guide to Appointments and Collateral Warranties on Construction Projects. Nigel Brown. Chandos Publishing, tel 01865 884447. 99pp. £59.95.