Ann Minogue welcomes us to the tedious, futile, wasteful, aggressive, pointless, hypocritical, irrelevant, bullying, baffling and pretentious world of her top 10 pet hates
Lists of Top Tens are Irresistible. Blame Patrick Holmes
for introducing them to Building with his new year's resolutions for the construction industry. Here, at the end of a long, hard week, is my collection of the 10 most irritating aspects of life as a construction lawyer – compiled with a little help from my colleagues.Top, by a large margin, is subcontractors' collateral warranties. The activity of chasing 20-30 specialists for their collateral warranties for a multi-let building when practical completion occurred long ago must be one of the most tedious, time-consuming and ultimately futile endeavours in the universe. Even when we have successfully collated them all, the client argues about the bill. Has anyone out there ever successfully sued a subcontractor under a collateral warranty?Having to review 80 pages of amendments to a JCT Standard Form tabled by a junior associate from another firm on a very simple project because it is that firm's "standard set of amendments". Often the amendments serve no purpose on the particular project, are completely inconsistent, don't reflect the up-to-date edition of the standard form and don't reflect the circumstances of the project. The project team's time is wasted, the contractor's time is wasted, our time is wasted – but it is "the standard".Discovering that we have done the same thing …Contracts stuffed full of lengthy and complicated procedures where there is absolutely no contractual sanction for failure to comply. What is the point of four pages of intricate drawing approval procedures providing for the submission, amendment, re-submission and endorsement of drawings when the contractor can bypass them at will? Those sort of provisions should appear in procedures manuals or management sections.Contracts that are bogged down with trendy terms used out of context – "supply-chain management", "preferred specialist", "KPIs", "problem-solving hierarchy" and "sustainability" used as though they were terms of art spring to mind.Aggressive and antagonistic claims correspondence from contractors that concludes with the words "we assure you of our best intentions at all times".Letters of intent generally, and in particular contractors who try to bully one-off clients into issuing letters of intent for the full amount of the contract sum. It is irredeemable bad practice to issue a letter of intent, except perhaps for early design work and pre-ordering under a two-stage tender.
There is no single issue that causes more dispute in the industry than the question of whether or not a contract has arisen after a contractor has started work on site under a letter of intent. It is often impossible to predict the outcome of any dispute resolution process because the legal position is so unclear. A client who allows his contractor to begin work on site under a letter of intent has no binding contract price, no binding completion date and not much by way of remedy if work is defective. A consultant who allows his client to do this should be sued for negligence.Solicitors (and QSs) who ape the junior bar – complete with Latin tags and phrases such as "with the greatest respect", "m'learned friend". Even top QCs don't speak like this.The law of contribution. We can all just about explain contribution in the context of a net contribution clause, but how many of us can honestly say we don't get a headache trying to consider the commercial ramifications in the complex framework of checks and balances on a classic development project with a fund's monitor, a tenant's monitor, a full professional team, independent checking agencies and so on? Might it not be easier if the construction industry started to rely on people doing their jobs properly without hoards of consultants peering over their shoulders?Email from solicitors who ostentatiously send messages about relatively trivial issues at 03:03.
It is irredeemable bad practice to issue a letter of intent. There is no single issue that causes more dispute in the industry
Ann Minogue is a partner in Linklaters