One consequence of this was their right to call on the design team for necessary information as and when they needed it, in whatever sequence suited their programme. How things have changed.
Writing in Building (6 November), Tony Bingham explains that the new Information Release Schedule – the latest invention of the JCT drafters in amendment 18 – is designed to achieve exactly the opposite effect: "To put the boot on the architect's foot instead of the contractor's." Knowing that architects tend to feel marginalised by the new JCT, I was intrigued to hear that they had won a major victory against all the odds. Let's take a closer look.
The new IRS is a contract document, so it is not a solution imposed by the architect – it has to be negotiated and agreed before the contract is signed. Once included in the contract, it becomes legally binding and any failure to meet its deadlines puts the client in breach of contract. This is interesting because the contractor's programme under the standard form of contract does not legally bind him.
So far it is not crystal clear to your columnist that the balance of advantage has swung to the architect. But read on: if an item of information is not on the IRS it must be released when required (as before), but the contractor now has to ask for it only if he thinks the architect doesn't know it's needed. In the old version he had to ask for it at a time reasonably proximate to the date it was needed and only if he did so would he get an extension of time in respect of late supply. That requirement has now gone, replaced by a subjective test which is effectively unchallengeable.
Let us put aside for a moment the inevitable objection consultants will voice – that by agreeing to such a thing they put their heads in a noose if they are late – and consider matters from the clients' side.
The contractor now has a legal right to insist on the IRS dates being met, but has no obligation to build in the sequence or timing indicated by his programme. Could he change his mind and ask for information in a different sequence?
The answer seems to be yes – because the contract contemplates variation of the relevant dates "by agreement which shall not be unreasonably withheld or delayed". (Incidentally, how does one withhold "agreement" as opposed to consent?)
- The new IRS is a contract document, not a solution imposed by the architect, so it has to be negotiated
- Contractors are not bound to meet the IRS dates, but can insist on the architect doing so
One must applaud efforts to encourage a disciplined approach to information release by the professional team, but is it not a fair criticism of this new JCT idea that, far from putting the boot on the architect's foot, it gives the contractor an unfair advantage, and may encourage tactical manoeuvring?
Plenty of problems are caused in traditional contracts by making method statements or programmes into contract documents. The one-sidedness of making the IRS binding on the client but the programme not binding on the contractor is another recipe for trouble. Surely the sensible approach would be to encourage pre-contract agreement on IRS and programme (possibly all rolled up into one document) – and then require both parties to "have regard to it", subject to an overriding test of necessity?
By this means an adjudicator (or other tribunal at the end of the day) would have an excellent yardstick (but not a straitjacket) to help make a just decision about when things should have been done in the light of all the circumstances – including the state of progress on site – at the relevant time.
New name, same old game Those of us who used to have difficulty distinguishing an Official Referee from an Official Receiver will no longer have any excuses for doing so.
The re-naming of the Official Referees' Court as the Technology and Construction Court has been heralded by Lord Irvine as a modernisation of the court's title to reflect its extensive jurisdiction and its international reputation – and not merely a public relations exercise.
Fair enough. While some of us would have preferred it to be called the Construction and Technology Court, we must all rejoice that the overworked judges of this division, who have handled some of the most complicated disputes ever to come before the courts, are at last getting some recognition.
Foreign customers in particular have often expressed surprise that these judges do not have the status of their High Court colleagues. What has Lord Irvine done about that? Answer: we now refer to them as "My Lord", instead of "Your Honour". No increase in pay or pensions. So, a High Court judge has been put in charge to make things look different, and they have been given the same salutation as a High Court judge.
Tony Blackler is a partner at solicitor Macfarlanes.