Here’s my personal selection of handy reference books to help you solve those legal conundrums that my columns don’t cover
I have five books I want to recommend … and a whinge about the Building Law Reports (BLR). BLR was once a rock-solid must-have book for professional construction disputomaniacs in the UK. Since 1976, it has featured commentary by top barristers and over the decades I have collected a library of hardback BLRs. Then, one day, some bright spark decided to substitute the hardback version with a skinny paperback report. Horrid. To give credit to BLR, the yearly price was miles over the top, but did include the online service for all of the reports. Those of us with a sense of loyalty and an interest in the commentaries coughed up. Unfortunately, the skinny paperbacks have kept coming and this year the BLR switched off 30 years of the online reports, leaving us with one year only.
Anyway, now for the good stuff. John Kean and Anthony Caletka are pukka analysts in that tricky area of delays, programming and extension of time. I highly recommend their book Delay Analysis in Construction Contracts. Both authors have extensive experience and have been in the witness box lots. The book tackles some of the thorny controversies in this business and says which way the answer should come out. It’s tempting to tell you here. Shan’t. Buy the book.
Quantity surveyors Peter Davison and John Mullen are both at Driver Consult and well placed to write the second edition of Evaluating Contract Claims. What I’d do with this book is read it and then sit it next to Kean and Caletka’s book. Ken and Caletka’s talks about the ins and outs of extensions of time, prolongation and disruption, and Davison and Mullen put money on it – they figure out the amount of compensation. The authors say of their own experiences that, even with claims that appear to be well documented, the calculations can be awful.
“It was a source of endless amusement to find that the sum claimed had sometimes been calculated without any reference to the contract terms and conditions,” they say. How true. In essence, the building industry ordinarily enters into contracts that expressly permit the customer to change its mind. They also allow the contractor and subcontractor to be messed about by those higher up. But variations, disruption and messing about is payable and that’s where disputes arise. Davison and Mullen, as two QSs, wrestle in real life with trying to deploy the messing-about rules and accurately decide if items are payable at all. I like the way the authors go about this evaluation. Their experience in real life bleeds through.
Let’s not forget the subcontractor folk. I reviewed a book two years ago by QS Peter Barnes and solicitor Matthew Davies called The JCT 05 Standard Building Sub-Contract. Now the same authors have written Subcontracting Under the JCT 2005 Forms. I find these two to be a reliable source of information on subcontracting. In their first book they talked about the standard form which took over from the well-known DOM/1 form. This new book continues from where the first left off, covering the other eight current JCT subcontracts.
If you buy this to put on the shelf next to the book from two years ago, you will become an expert on not only the standard subcontract form but also: the Design and Build Sub-contract (the new DOM/2), the Major Project Sub-contract, the Intermediate Sub-contract agreement, the Intermediate Sub-contract with Sub-contract Design agreement, the Intermediate Named Sub-contract, the Minor Works Sub-contract with Sub-contractor’s Design and the Short Form of Sub-contract. Phew.
Engineer Brian Eggleston has updated his book Liquidated Damages and Extensions of Time. The first edition was in 1992, and the second in 1997, and there have been many developments in the field since then. Eggleston has once again hit the nail on the head with this high-quality, easy to understand legal textbook written for lawyers and the industry.
Finally, I come to Kevin Barrett’s Defective Construction Work. This lawyer knows his stuff. The book is to be read not only by all builders, but also by every architect, engineer and QS. Lessons are enormous and so are the consequences of defective construction work.
Tony Bingham is a barrister and arbitrator at 3 Paper Buildings Temple