You may think it best to make a contract as verbose as possible to ensure it misses nothing, but in reality it’s best to be brief and to the point
It is rare for judges to act as architectural critics, but not so rare, unfortunately, for them to have to decide how to resolve conflicting provisions in the building contracts of critically acclaimed buildings.
Mr Justice Coulson attempted to do both in the recent case of Bovis Lend Lease vs Cofley Engineering Services. He reflected that: “It is sad but true that buildings which win architectural awards and might be regarded as truly outstanding designs are just as prone to disputes as the average development. Court buildings are certainly not immune from this. This claim arises out of a continuing series of subcontract adjudications in connection with the Civil Justice Centre in Manchester, surely one of the finest public buildings of the past 30 years.”
The dispute itself related to conflicting provisions in a subcontract about the appointment of the adjudicator. Was he to be Rob Smith, another partner in Davis Langdon, or an adjudicator nominated by the RICS? Each side accepted that the subcontract said different things in different places.
What is interesting about the decision is the way in which the court approached the interpretation of the conflicting provisions. I say this as someone who is frequently involved in drafting contracts. I am always astonished at the interpretations of contractual provision that disputes lawyers and claims consultants are prepared to argue for when lots of money is at stake. The English language and all commercial sense seem to fly out of the window as claimants look for a chink through which to drive a claim or a defence.
But Mr Justice Coulson’s fine architectural judgment is matched by his astute application of the general principles of the construction of documents. He reminds us all that the courts take a commonsense view of construction, and emphasises the importance of the courts, not only construing the document as a whole but also applying “a sensible and commercial interpretation of the words used”. It would be helpful, and save on huge lawyers’ bills, if the parties to disputes remembered this.
He noted also that in applying these general principles other commonsense rules were used by the courts, such as the fact that written, stamped or typed words that are inconsistent with printed terms usually supersede them, and that deletions and amendments to standard form terms are a legitimate tool to aid interpretation.
The judge placed emphasis on the priority of the documents clause in the subcontract in reaching his decision. Pragmatically, while he said it was less than helpful for the court to say “well, if that is what they meant, they should have said so”, it was legitimate to say that the claimant’s case relied on a circuitous route when it could have achieved its objective by a small amendment to one provision of the appendix to the subcontract – again, emphasising the need to take a commonsense approach.
The thesaurus style of drafting, which attempts to say the same thing in every possible way, is in nobody’s interest
Of course, most building contracts are voluminous and most standard form documents are the subject of extensive schedules of amendments. The industry accepts this almost without question, presumably on the basis that since the building process is complex and the sums involved are large, the thicker the contract, the more protection it offers.
But that is certainly not the case. In fact, the thicker the contract, the more likelihood there is of conflicting provisions in it which, notwithstanding the sensible approach of the courts, allow room for argument. Also, the thicker the contract, the less likelihood there is of it being checked thoroughly from beginning to end to iron out what Mr Justice Coulson referred to as “infelicities of drafting, cross-referencing and the like”. Printed forms may contain one drawing approval procedure, which is then deleted and a new one substituted by the schedule of amendments to the standard form. But then the architect’s specification may contain another procedure with conflicting provisions, and the engineer may add its procedure and sometimes even the quantity surveyor’s preliminaries get involved. This is in nobody’s interest.
And neither is the thesaurus style of drafting, which attempts to say the same thing in every possible way. The industry’s best interests are served by drafting the same thing once, accurately and succinctly. Any other approach is doomed to generate chinks, and argument.
So, as a lawyer who specialises in drafting, is this just a defensive piece criticising dispute lawyers and claims consultants for taking points on drafting,
just because I cannot acknowledge the “infelicities” in my own work? Well, sometimes there may be the odd tpyo …
Ann Minogue is a partner in solicitor Linklaters