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Why a trip down memory lane could pay dividends in court

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legal matters

This column, like others of its ilk, tends to focus on the latest case to hit the headlines, but this can obscure the fact that many principles of construction law are based on old cases that are still sound. What comes over loud and clear when looking at these cases that set out the basics of construction law is that in the 19th century the employer was king, and the other participants in the building process were far less important.

As a result, many general principles are today heavily modified by contract terms, explaining much about the standard forms we regularly encounter. In addition to being informative, old cases are frequently entertaining; they often involve well-known buildings and characters popping up in the dramatis personae.Sofor some light summer reading, try these samples of the 'lore' of building that still hold good.

Back in the days when Thomas Telford was an engineer rather than a publishing concern, he had a walk-on part in an 1826 case, Moneypenny v Hartland. Telford took over from George Moneypenny as engineer of a bridge across the River Severn. Unhappily for Moneypenny, he relied on the advice of his own predecessor as to the site conditions, not having troubled to inspect them for himself.

Moneypenny estimated the cost of the works at £1,700 but it overran by some £3,300. The employer did not want to pay Moneypenny's fees, so Moneypenny sued. The court decided Moneypenny had been negligent in relying on the site inspection of his predecessor, encouraged in this view by Telford's evidence. It was held that having negligently delivered a low estimate, and thereby induced his employer to undertake work that he would not otherwise have started, the engineer was not entitled to be paid, and this principle remains good law.

The judge noted in passing that the doctrine also applied to public works: 'There are many in this metropolis which would never have been undertaken at all, had it not been for the absurd estimates of surveyors.'

If a dim view was sometimes taken of consultants, contractors had an even harder time of it.

In 1858, Major Fitzmaurice entered into a contract for a house to be built for him. For £1,100 the contractor, Williams, was to provide all necessary materials and work. There was a specification but some things were missing from it. In particular it did not mention flooring. The contractor refused to put a floor in unless the major paid extra. The court decided the contractor was obliged to provide a floor, even though it was not in the specification. When a contractor agrees to build a building for a lump sum, for that lump sum the contractor agrees to do everything necessary to achieve the end result.

The contractor's lot was still an unhappy one when, in 1876, the House of Lords deliberated on the case of Thorn v the Mayor and Commonalty of London, which concerned the demolition and rebuilding of Blackfriars Bridge. Joseph Cubitt designed and specified the new bridge. Part of his design was to use caissons during the construction.

The contractor, who was obliged to follow the engineer's directions, built the caissons, but they did not achieve their purpose. A different method was then employed, the contractor having lost time and money following Cubitt's original scheme. The contractor claimed for his losses, arguing that by stipulating that the work should be done in a certain way, the employer had impliedly warranted that that was achievable. The House of Lords not only disagreed with the contractor but found the possibility that his argument might be correct 'most alarming'. So no implied warranty by an employer to a builder that the scheme they want built is in fact buildable.

That all three of these examples still encapsulate sound principles of law goes some way to explaining why we see standard forms of consultants' appointments and building contracts that are commonly regarded as anti-employer. But it is healthy to remember that much of our construction law, which we would have to fall back on in the absence of such express terms, dates from an age when the boot was firmly on the other foot.

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