Want to know the future? Then cross our very own legal astrologer’s palm with silver as he gazes into his crystal ball and makes his predictions for 2005
What does 2005 hold in store for construction law? Will it be more of the same or will things get better or worse? Are we in for another wave of adjudication cases challenging adjudicators’ decisions? Will arbitration get more popular again? Will the Technology and Construction Courts attract more or less business?
One thing to bear in mind is that 2005 will be an election year, unless something (else) goes badly wrong for the government. Therefore there will be little legislation affecting construction law. The review of the Construction Act, even if finalised, will not attract any priority because the parliamentary timetable, even after the election (and whatever the colour of the new government), will be full of allegedly more pressing business.
There is just a hint that the flood of adjudication cases might slow down. The recent Court of Appeal case of Amec Capital Projects vs Whitefriars City Estates (8 April 2004, page 52) involved a challenge to an adjudicator on the grounds of lack of jurisdiction, bias and procedural unfairness. The court dismissed all these challenges. The tone of Lord Justice Dyson’s leading judgement suggests that the Court of Appeal at least will not be looking too favourably on similar challenges in the future.
It will of course be impossible to prevent the inexorable spread of human rights legislation into almost every walk of life, including construction. Although the quick fix of adjudication does not attract human rights (despite many employers believing that the procedure verges on the inhumane), the rights to a fair trial (article six) and to respect for private and family life (article eight) are likely to impinge.
Section three of the Human Rights Act 1998 requires that legislation and even court procedural rules must be interpreted and given effect to in a way that is compatible with the The European Convention for the Protection of Human Rights. This will mean that court rules on amendments will be interpreted liberally to allow parties to pursue any arguable claims or defences within reason. Planning and development laws will be construed to observe article eight in areas such as travellers’ rights and private planning applications.
A number of recent cases have involved what are laughingly called all-risks insurance policies
There will be greater clarity in the role of experts in disciplines, ranging from architect, engineer and accountant to quantity surveyors and programming consultant. Because there has been a greater requirement that experts should be not only independent but be seen to be so, there has been some concern that they might have to reveal private thoughts and discussions with their clients and their lawyers. A recent Court of Appeal case, Alan Jackson vs Marley Davenport Ltd ruled that earlier drafts of experts’ reports did not have to be disclosed as they were still privileged. This was a helpful development in the clarification of the expert’s role.
A number of recent cases have involved what are laughingly called all-risks insurance policies for contractors. These have highlighted the fact that such cover is anything but. The recent Commercial Court case of Lumbermens Mutual Casualty vs Bovis Lend Lease (5 November 2004, page 52) has highlighted the difficulty of obtaining an indemnity from insurers for a payment made under a global settlement. The problem with insurance is that often the exceptions to exceptions take away what appears to be covered by the opening words of the policy. Contractors will need to look at proposed policies much more carefully to ensure that they are actually covered against the risks that they need to be covered against.
Crystal ball gazing is all very well, but even the cases that are in the pipeline are no guide because they settle or get decided on some unforeseeable basis. However, like Mystic Meg, I can’t be proved wrong until the end of the year. Leave the £1 coin in the lucky hat by the door on your way out, would you?
Robert Akenhead QC is a barrister in construction law at Atkin Chambers and joint editor of Building Law Reports