Blackwell Science, 256 pages, £45
My daughter was about eight years old when, having been roundly accused of doing something she shouldn’t, answered with a straight bat: “Jolly well prove it.” I don’t know how old Nick Carnell is, but he is into “proof” in his new book about construction disputes.
The title is a tad dull, but the book is splendid stuff. It is about that old chestnut – delay claims. More particularly, he deals with that oft-forgotten or ineptly handled part of delay claims: how to prove them – rather than the easy bit of quantifying. Loads of folk can compile the quantum, but are not so on-the-ball with proving the basis for a claim. Save yourself a lot of hassle, go and buy Carnell’s book.
The book isn’t aimed at lawyers, but is intended as a reference guide for construction people.
He has focused on the practical considerations and knows, as a solicitor and team member of SJ Berwin’s construction division, that if his clients are to stand a chance with a claim, they have to be smart with record-keeping, giving notices, and following the rules in the contractual bumph. The die is cast on success by the time the customer walks into the shop. But by using his handbook from the start of the contract, the chances of getting compensation for delays, or fending off a claim, are much improved.
He reminds us that Dickens’ Mr Bumble said: “What I wants is facts.” But to get them for a prolongation claim nowadays needs knowledge, says Carnell, of such things as collapsed as-built techniques, “impacted as-planned techniques” and time impact analysis – together with evidence of all sorts, to show cause and effect.
He also tackles the disruption delay claim and usefully spends a great deal of time explaining rolled-up claims. He explains the line of cases, but has surprisingly missed the excellent analysis by Judge Hicks in Howe vs Lindner.
As the book’s title suggests, “causation” is the theme; if something happens that leads to delay, is it possible to prove that it was this event that caused the contract’s progress to be upset? The fuel crisis may have caused the bricklayers to stay at home, but did their day off cause the contract to run late? You need to prove causation, then loss, then to quantify the loss.
The fuel crisis may have caused the bricklayers to stay at home, but did their day off cause the contract to run late?
The book is timely since more contracting people want to know how to deal uncontroversially with delays in their interim accounts – and, if not agreed, quickly show the adjudicator what event occurred and what it caused. Carnell explains how to manage progress records to suit the quick and economical resolutions of differences of opinion. Truth is, if managers follow his guidance, they will instantly see for themselves who or what actually caused the delay; it may lead them to quietly drop the idea of making a claim at all.
A Building Contract Casebook, 3rd Edition
Vincent Powell-Smith and Michael Furmston
Blackwell Science, 544 pages, £55
This book is disappointing in two ways. This “latest edition” was 18 months out of date when it hit my desk. Won’t do. Fortunately, the authors do make it clear that the cases only run to early 1999. Blackwells will have to do better than this.
The second beef is that a golden opportunity has been missed to sell the book with a CD-ROM and search engine. Searching cases or words-in-cases is routine these days, so come on Blackwells.
Finally, let me come to a great advance. RIBA Publications has joined with JCT to put 44 JCT standard forms on disc. Hurrah!
The family of forms is JCT98, JCT Nominated Forms (NSC98); WCD98 “With Contractors Design”; IFC98 The Intermediate Forms, together with NAM98 for Naming Subcontractors, and finally Minor Works 98. All contracts can be searched for a word or phrase using the “finding text” facility. Clauses can instantly be brought on screen. Agreed changes can be made on screen, too. I have been using this JCT on disc for about four months and am delighted.
Purchase is via subscription. Full service is £295, plus VAT, for a single user, and £100 for each additional licence. The small works service is £95, plus VAT, and £50 for each further user. New discs are issued every time an amendment is published.
Tony Bingham is a barrister and arbitrator specialising in construction.