It’s summer and you’ll be wanting to pack some reading matter for the hols. Well, Construction Contract Variations will have you on the edge of your lilo
Here is a bright idea. Mine of course. I want every adjudicator and wannabe adjudicator to sit an examination and cross-examination on all that is said in this brand new book. It is Construction Contract Variations by two top-notch construction lawyers, Michael Sergeant and Max Wieliczko. The first sentence in the book says: “Variations, as a subject, has been largely ignored…” And it goes on to say: “There are no specialist books on this subject.” The want of books is true. The fact that the subject has been ignored is untrue. The confounded and daft behaviour about variations is in yours and my face every day, every hour. Nearly every dispute includes something or other about variations, hundreds of the blighters.
We, all of us, take for granted from day one on the site, the tidal wave of changes, variations, and compensation events, and nowadays the adjudicator is up to his neck in ingenious arguments about the variations arena. It’s the stuff of disputes. I love it.
Sergeant and Wieliczko have got to grips with all this. Damn near 400 pages of the stuff. And the topic is ever so much more complicated than we think and, worse, we take these variations for granted as inevitable and ordinary. Some dafties even think it’s a great opportunity to turn a bit of profit on the job. But actually, the consequences of variations is an expensive nuisance and disruption, and if you think you can weadle some profit, even exploit the variations, you will spend oodles of soft management time ducking and diving - all legitimate of course but time-consuming and expensive.
We expect changes, expect to be able to mess the builder about. the contract introduces an express right for the customer to change his mind, fill the gaps, or choose later
The other truth that soon comes home in the book is that there is no automatic right in a contract to vary the deal or the amount of chocolate biscuits in the quantity column. None. We have all been brought up on the notion that no construction contract at the outset is a done deal, designed, quantified and just build-it. No, no, we expect changes, expect to be able to mess the builder about.
There are gaps and chasms in the prepared specification. So the contract introduces an express, definite and oppressive right bestowed on the customer to change his mind, fill the gaps, or choose later. He even thinks, quite wrongly, that he can swap the supply and installation of those specified chocolate biscuits for giant-size ginger nuts instead. The book explains: “The nature of the process is such that some changes to the contract scope are almost inevitable and may be essential simply in order for the contract to reach completion.” Quite right as to “some changes” but that’s not what goes on. Often the sub-stratum of the contract is so undermined by variations that the original contract is lost, obliterated into smithereens. Now what? Go to the book.
The book is choc full of all the alleyways to do with liability. The QSs out there, as QS adjudicators, are ever so good at quantum. But that’s not nearly enough. The authors are man and boy lawyers - isn’t that a big hint that an awful lot about variations is not much to do with every day QS-ing? The QS adjudicator needs very highly tuned inter-disciplinary skills - meaning a knowledge of the law, too. It has to be there on tap in this high-speed adjudication process; so, I mean it, get the book. Mug up and be cross-examined if you want to be or stay an adjudicator. And one other thing, if you are the QS, the engineer, the architect on any job, you too need all this in your kit bag. Why? Because you don’t know enough and that’s what causes the disputes; buy the book. It will cost you £290 or £275 on Kindle. Pricey? Oh, yes. But the authors are giving all the royalties to the construction industry charity, The Lighthouse Club.
I haven’t finished. Now buy Construction Contracts, 3rd edition by Richard Wilmot-Smith QC. I confess to being somewhat in awe of folk at this level of practice being willing and able to produce a book of this impressive quality. Here we have a top construction Queen’s Counsel willing to share (for peanuts) his knowledge and experiences with you. And yes, the book deals chiefly with construction disputes, 750 pages of it. Look, if you are a contractor, you are up to your neck in this lawyer stuff. This author takes you, with easy-to-follow language, into contract, forms of contract, work outside of any contract, tricky stuff about rights of third parties, professional negligence, and then a complete examination of claims, competition, disputes and an excellent discussion about partnering. The book has become a leading textbook in construction law. A special nod of thanks to Wilmot-Smith QC and his co-contributors.
One last minute pointer for you is the latest edition, just out, of The Arbitration Act 1996 by Bruce Harris, Rowan Planterose and Jonathan Tecks. It’s 14-years since Edition No.1. It is the book I use in my arbitration work: wholly reliable. £80 or Kindle at £76.
Tony Bingham is a barrister and arbitrator at 3 Paper Buildings, Temple