A lawyer's education is not complete until he has some work done on his house, whereupon he discovers that contracts matter less than a pint with the governor …
my wife and I have been having our house extended. A few weeks into the works, I am now able to recommend that budding construction lawyers gain direct experience of this nature, because there is nothing quite like putting the theory into practice - and it's a lot more difficult than one might imagine.
We obtained planning permission relatively smoothly, then we managed to butter up the neighbours into signing party wall agreements. But when it came time to tender, we got a real welcome to the cold face of the industry. We learned that good contractors do not fall over themselves to tender for minor building works, particularly for a client who happens to be a construction lawyer.
It was all we and the architect could do to identify a handful of firms that would respond to tender invitations within a reasonable time. Two tried to circumvent the tender process, meeting us direct to negotiate and seeking to persuade us that if we dropped the architect (whom we were told had overspecified things) the job could be done much more cheaply.
After some consternation we opted to stay with our architect and appointed one of the legitimate tenderers. We were determined to tie up a watertight contract - this was one place where I thought I could bring some experience to bear. The contractor did not resist signing up contract (from the new JCT Homeowner's version, albeit with a few amendments, including a liquidated damages provision).
Work started on time. A temporary kitchen was created from the remnants of the existing kitchen and by the end of the first week, work was on schedule. Then the oven stopped working. Like magic, and without instruction, the contractor bought us a new oven and installed it for us the very same day "to keep your missus sweet".
Our first thought was, "that's very kind". Our second was, "Are you planning on charging?" "Let's wait and see; we're sure you know the rules," said the contractor. We are still not sure what that means but they haven't charged (yet) for the oven.
Not worrying about it too much and just getting the work done seems to be the best course of action
In the contract, we asked the contractor to draw up a programme showing how he planned to complete the works within the 14 week period. By the end of week five, the programme had slipped two weeks. No updated programme has been produced although the contractor is confident he can claw it back "through the brickwork". Presently we are not sure when the works are due to finish.
The architect is currently on holiday and there is a payment application outstanding. What to do? As everyone knows, cash flow is the life blood of the contracting industry and therefore we paid up, pending certification by the architect when he returns from his beach. I'm not sure if, legally or contractually, that's a good or a bad idea, but it certainly kept the contractor happy and hard at work, which seemed to us to be the main thing.
Meanwhile, we are told that there will be some small additional costs, which we will be told about in due course, but which haven't found their way into any payment applications. There have been some delays caused by ground conditions, and the structural engineer has had to make a small amendment to a beam. There's just been a leak caused by a corroded water main, so half the patio has been dug up. We are guessing we'll be charged for that and again I'm not really sure the contract deals with the issue.
Apart from all that, at the end of week five, things seem to be progressing reasonably well. It would be nice to have an updated programme and to know what the contractor thinks he can claim in due course, but not worrying too much and just getting the work done seems to be the best course of action right now. After all, the governor supports the same team as me and we're going to the footie together next week. I am sure we can resolve any problems over a pint, and the contract can stay in the bottom drawer … at least for the time being.
Nick Henchie is a partner in the construction department of Mayer, Brown, Rowe & Maw