Taken a vow of abstinence? Girding yourself for the rigours of rapid detox? The lawyers among you should turn your attention some to some proper resolutions
A new approach for the New Year.
Forget all that nonsense about drinking more, eating less healthily, never going to the gym and seeing less of the family. Here are some resolutions for lawyers in construction.
In the autumn, the Building Report (24 October, page 42) suggested 50 ways to improve the industry – some serious and some less so. I have made some of them my New Year resolutions.Number 3: Bring in retention bonds. We are often asked what we think of the request that a bond be offered in lieu of retention. The lazy answer is to say that there is nothing better than keeping your hands on the cash and using it to stay in the driving seat when it is time to make good defects. But surely we should try to understand more about the impact of retention on cash flow not just for main contractors but on subcontractors and suppliers. In most businesses, when a job is completed it is paid for. Money is not held back just because something might go wrong. Lawyers should keep an open mind on the subject and be guided by the client.Number 19: Keep standard contracts standard. Now there is a challenge. Always a temptation to tinker. Sometimes it is justified (to tailor a contract to particular circumstances not contemplated by the standard form), sometimes it is not (when lawyers are showing off or thinking they know best). Only last year the JCT Major Project Form was launched amid claims that it met many of the perceived shortcomings of the JCT Design and Build Form in the context of major commercial development. In my view it does but straight away we lawyers were picking at it, coming up with our own amendments to try out once we find a client brave enough to be among the first to use the form.
Just mentioning macho construction workers brings the Village People to mind. Quick, let’s move on
Rather than reeling out standard sets of amendments, shouldn't we be talking to our client about what the standard forms say so that the client can decide whether he or she wants to live with the terms or wants an amendment? Yes, we do often have to keep the banks happy but they should be just as willing to consider a contractual risk as anyone else.Number 21: Keep construction macho. Actually, I don't think this one is too much of a problem for the lawyers. Just mentioning macho construction workers brings the Village People to mind. Quick, let's move on.Number 25: Swap jobs for a day. What is more, do it for free. Most law firms invest time and money in seminars, legal notes and parties for clients. Why not invest as much time finding out what really goes on out there? Perhaps clients should insist on it. Here's a few ideas …
Wouldn't it be interesting to see how a valuation really works, including the give and take that has nothing to do with the terms of the contract?
What does a clerk of works or resident engineer really do and how does this impact on quality?
How does the design process really work, especially the interaction between the design team leader, the other consultants and the design contractors?
What is wrong with crocidolite and would you know it if it hit you in the face? Number 32: Make the client your champion. Lawyers advise, clients decide. How often have we sat in meetings with a lawyer telling the client he or she cannot possibly agree something in the contract?
The client is a grown-up, commercial, intelligent person who knows more about how construction works than most of us ever will. Let the client decide. And don't just hide behind going for the harshest contractual position because that is what the banks will want.
We need to say our piece but ultimately it is for the client to agree and for lawyers to document what has been agreed.