For those clients, project managers and contractors still unsure how the changes in the NEC3 form affect them, this new book sets it out clearly
If you ever start reading an arbitration award written by Brian Eggleston, you will want to read on to the end. It will be obvious that Eggleston is a practical engineer, fascinated by the factual problems that led to the dispute, and with a real desire to explain them and to sort them out. The law interests him, but what happens on site is much more exciting.
Eggleston doesn’t really like the New Engineering Contract. This may come as a surprise, bearing in mind that his book on the second edition of the NEC has been the leading text. Many know him for that book rather than for his day job as an arbitrator.
In his latest book The NEC 3 Engineering and Construction Contract – A Commentary he acknowledges that the use of the NEC has grown rapidly and suggests that it may become the dominant contract of the future, but he doesn’t explain why. Many readers will wonder why a contract with all the problems that Eggleston describes has become so popular. But never mind – if the use of the NEC is to be so widespread Eggleston and Blackwell will do very well indeed, because everyone involved in projects using the NEC should have a copy.
As well as dealing with what the contract says, the book covers what it used to say in the second edition and explains the changes. There are plenty and it would be dangerous to rely on the earlier edition of the book if you are using NEC3.
Eggleston is not afraid to express an opinion. In his book on NEC2 he suggested the apparent time bar on notification by the contractor of a compensation event could be overridden by reliance on common law principles. Not everyone agreed. It is a commonly held view that the changes in NEC3, with a much clearer statement of the timetable in conjunction with an “entire agreement” clause, put the matter beyond doubt. Not so for Eggleston, who suggests that there still may be ways around the apparently draconian time-bar provisions. But he is never dogmatic, and on this point and many others he does no more than indicate the potential uncertainties and recommends that users take legal advice.
The one thing that the public doesn’t tend to hear much about from Gove are his views on housing and planning
So this is not a law book. It refers to a handful of decided cases, but does not go into extensive legal analysis or debate about the principles of construction law. For example, in dealing with delay damages, Eggleston discusses all the express provisions to be found in NEC3, all the changes that have been made to NEC2, and sets them within the context of the broad principles. He refers to only three cases on the subject to illustrate the principles he is explaining.
That is one of the book’s real strengths. The project manager needs to know how the contract works. Eggleston has found 91 duties for the project manager and explains what each entails. He also gives an idea of what can happen if the project manager doesn’t do what is required.
The client is increasingly being encouraged to use the NEC, and will be given professional advice about which options should be selected. It is relatively rare for the client to understand that advice. Eggleston explains the pros and cons clearly, and suggests a number of questions that the client should ask the adviser.
The biggest problem about the NEC is that clients, project managers, contractors and subcontractors do not understand why the contract is so different, and why the practices that they have developed over years of working with traditional contracts have to change if it is to work. Anyone who reads this book will understand.
John Redmond is a partner at Osborne Clarke
• The NEC 3 Engineering and Construction Contract – A Commentary by Brian Eggleston is published by Blackwell