As a new year begins and pantomime season draws to an end it’s time for us to put an order in to construction’s fairy godmother …
Making predictions is a mug’s game. Someone will always remember what you said and remind you how wrong you were. So rather than glass slippers and carriages, can we ask the construction industry’s fairy godmother to grant us the following 10 wishes for 2013?
A happy and prosperous subcontracting industry. The pace of contractor insolvencies seems to have increased in the last quarter. The slow, lingering death of once-proud companies is anguishing not just for directors and employees of the company but also for those who have worked with them over many years. And so many contractors seem to have been brought down by just one problem contract. Please, no more …
While not generally averse to red tape - we are lawyers after all - Health and Safety legislation seems to have become a substitute for good site practice in the same way that the Construction Act legislation has become a substitute for good payment practices. There is apparently another review/redraft commencing in the New Year. May it come up with some practical recommendations rather than threatening more clients’ directors with jail. The last thing the industry needs at the moment is further deterrents to starting projects.
May we finally expose and name and shame those involved in hidden discounting, rebates, back-handers and the myriad other cheats and tricks perpetrated on those down the contractual chain. The conspiracy of silence that plagues this area of sharp practice - indeed, criminal activity in the most extreme cases - is shameful. May our fairy godmother spread transparency and honesty even if the Bribery Act won’t.
And may we have more projects please? And not just in London. And not just residential. And lots of towers.
Can we stop arguing in the courts about what “good faith” means? The irony has ceased to be even slightly amusing and, while we have never been great supporters of the NEC, which uses similar language, is this not exactly what its authors were condemning in the first place? Does this not prove perhaps that no form of contract is ever going to change the industry? (As an aside, I was pleased to see the TCC taking a robust approach to dismissing “black hole/no loss” arguments recently - definitely no more of those, please.)
You managed to get us to drop PC sums about a decade ago, but isn’t it time that you waved your wand and abolished provisional sums too? That means both so-called “defined” and “undefined” provisional sums. You will have seen that they create the illusion of a fixed price and a fixed programme but, in reality, they are just gaping black holes for the unwary client. If it is beyond your power to stop quantity surveyors doing this, could you at least make them explain to their clients what provisional sums entail so that clients can instruct their quantity surveyor to take them out?
Times are hard but can you please persuade us all not to cut back on biscuits, cakes and bacon sandwiches, particularly for any meeting which starts before 9am? You also need to put a curse on anyone who even thinks about organising a meeting before 8am.
Please do not let lawyers in the industry turn BIM into the next excuse for endless long clauses in consultancy agreements and schedules of amendments to JCT building contracts. You might sprinkle some fairy dust of understanding on us about what BIM actually is and why it does not need 7,000 words of dense type to make it work.
Your intervention has stopped heaps of paper Christmas cards coming through the post to the office but there are those who have tried to get round your wishes by sending brightly coloured emails which flash around the page in sickening fashion. This is not even post-ironic.
Can you just whisper into the ears of all claims consultants that even a trainee can spot a global claim these days? Clients will not pay them or be intimidated by the amount involved and adjudicators will not just split them down the middle. Get real.
And just in case you are feeling a generous fairy, we would be very happy to have another five wishes …
Ann Minogue is a construction partner in solicitor Ashurst