When I began my review in 1993, I was reluctant to embark on a lengthy examination of building contracts in the construction industry. I am not a lawyer and make no pretence of any expertise in that field. Nevertheless, I had to study this issue because it was of concern to all interested in the review process, and particularly to specialist contractors. I could not ignore it if I was to do justice to the terms of reference.
So, I sat down to read most of the contracts drawn up by the Joint Contracts Tribunal (JCT), the Conditions of Contract Standing Joint Committee (CCSJC), the New Engineering Contract, the Red and Green Books of the Institute of Chemical Engineers, and many others, including those issued by the late John Huxtable's Confederation of Construction Specialists. I cannot pretend that it was interesting reading.
I also felt that if the parties that had set up the review had wanted to appoint a judge or an academic lawyer rather than a retired politician, they had plenty to choose from. Presumably the dice fell towards me because I was not legally trained, nor indeed a qualified practitioner of any professional discipline in the industry, but independent of all industry sectors.
That is why I felt that I had to go back to first principles, and ask myself what a contract should contain if it was to be regarded as fair and effective. I listed 13, several of which were viewed with horror by the legal profession, because they contained requirements to deal fairly on a win–win basis. To those lawyers who felt that such concepts were meaningless, I pointed out that other legal jurisdictions seemed to cope with them, and in any case we needed to change the industry's culture in order to reduce conflict, rather than reinforce it. I also observed that many of the 13 principles were already contained in the New Engineering Contract, which was increasingly widely used in Britain, South Africa and elsewhere.
I sat down to read most construction contracts – I cannot pretend it was interesting reading …
The NEC has since brought out a second edition, which meets all the 13 principles. The company that I chair, Willmott Dixon, uses NEC frequently, especially on social housing, and we find it a very useful and practical document, which enforces best practice and efficient project management.
The JCT forms have also been amended in order to meet the principles in one form or another. The greatest resistance to change came from the CCSJC, responsible for drafting the Institution of Civil Engineers contract, but ICE7 does contain some of the approaches that I suggested.
Recently, long after my report, PPC2000 was published, which certainly embodies all my principles and embraces the full monty of partnering and modern best practice. No doubt some academic lawyers will say of PPC2000, as they also said of the NEC, that it should not be used because it has not been tested in the courts. The absence of courts is a plus, in my view. If you want a document that is regularly tested in the courts, you can use JCT80.
I also favoured a change in the structure of the JCT so as to remove vet's from organisations that were not party to the actual contract under discussion. Those changes have been made, though sadly the Specialist Engineering Contractors Group remains outside the tribunal. I proposed that a family of interlocking documents should be prepared, including a JCT domestic subcontract, and real progress has been made in that regard too.