Construction and engineering precedents, Const. L.J.

1999, 15(5), 407-409

Const. L.J. 1999, 15(5), 407-409

Construction Law Journal

1999
Construction and engineering precedents
Tony Blackler
Reviewed by Tony Blackler
© 2021 Sweet & Maxwell and its Contributors

Subject: Construction law

*407 It is surely no coincidence that two publications primarily concerned with documentation used by the construction
industry should emerge at about the same time. There are already many fine textbooks available dealing with the substantive
law. What the busy practitioner lacks is rapid access to bespoke documentation which addresses the one-sidedness of so many
of the standard forms promulgated by the various industry bodies.

Whilst firms of lawyers specialising in these fields have produced their own home-made amendments to the standard forms
over the years, for the first time (as far as this reviewer is aware) the general practitioner will now be able to access a wide range
of state-of-the-art precedents produced by experts in the field through these books.

*408 Levine is much the more ambitious work of the two, covering a broader canvas, which takes on the domestic construction
and engineering contracts and the international engineering contracts as well. Both books tackle JCT 80 and 81 (as they
once were) and DOM/1. Levine also deals with the other building contracts--Minor Works, Prime Cost, Intermediate Form,
Measured Term and DOM/2. Of particular interest are the miscellaneous documents in Levine Volume I--crane oversail licence,
acceleration deed, guarantee maximum price provisions for JCT 80, and a partnering agreement. Those amongst us who have
struggled to re-invent the wheel when preparing acceleration deeds or guaranteed maximum price arrangements will find these
documents of interest. They highlight the difficulties that typically arise and suggest solutions. One may not agree with the
particular solution on offer (e.g. in the acceleration deed why should the contractor, as opposed to the employer, warrant that
the architect has agreed to its terms?) but this does not matter. The point is out in the open and one can take a view.

Neither book grasps the nettle of the Engineering and Construction Contract; Levine expressly stating that it is difficult to amend
because of the six optional payment mechanisms and because the ECC regards itself as a project management tool rather than a
contract. This reviewer is entirely sympathetic, but it is well known that the contracts have been heavily adapted by users. The
bold author prepared to tackle this major project is still to step forward!

Cockram's manual states that its objective is to satisfy the need for adequate amendments to the standard form contracts in
common use so as to protect the interest of clients and end users. Levine aims to produce amendments that will create balanced
contracts that do not unduly favour producer or consumer. A comparison of their respective approach to JCT 81 (now JCT with
Contractor Design 1998) is instructive. It is unfortunate that Cockram was published before the author had access to amendment
12 and the House of Lords' decision in Beaufort Developments v. Gilbert Ash, though these deficiencies can obviously be
remedied later. Curiously though, the amendments proposed do not include any attempt to turn the contract into a true single
point responsibility vehicle which is what most developers seek to achieve. (In this regard, Levine's commentary misleadingly
suggests that JCT 81 is appropriate where the contractor is to take responsibility for the design of the whole project. That can
certainly be achieved, but only when the form is suitably amended.) One is left wondering whether Levine's amendment ("the
Works when completed will comply with the Employer Requirements") is sufficient to achieve single point responsibility where
the Employer's Requirements themselves have a design content.

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Construction and engineering precedents, Const. L.J. 1999, 15(5), 407-409

Practitioners will take delight in comparing and contrasting their own amendments to the standard forms with those on display
here. You will find well-drafted millennium compliance clauses in Levine (but not Cockram). These would appear to be standard
provisions today. Similarly, the treatment in Levine on JCT 80 of "concurrent delay" in the extension of time clause, and of
contractor's nuisance liability will be of interest.

Levine presents a set of construction management documentation which practitioners will find useful, particularly since the
JCT's own version has still not emerged. The classic legal problem with the construction management system has always been
how to deal with trade contractor defaults so as to avoid the fate that befell the developer in the Broadgate litigation where
"bona fide set off" clauses were rendered ineffective by the Court of Appeal.

The solution offered in precedent A24 is interesting and controversial. The construction manager is given the twin (provisional)
powers i.e. to decide that the trade contractor is in breach and to fix the amount of loss the employer is suffering. The absence of
the former power was fatal to the developer in the Broadgate and Beaufort House cases. But statutory adjudication has arrived
since then, and will doubtless be relied on by an aggrieved trade contractor.

*409 Shortly after these books were published the Joint Contracts Tribunal published (in 1999) new editions of its family of
contracts--JCT 98. As a result there is already a substantial up-dating task facing the authors, which will be accentuated when
the Contracts (Rights of Third Parties) Bill becomes law later this year.

For my money, Levine (at £240) is the more useful book, and its amendments more far-reaching and detailed than Cockram's
(where the books overlap), though Cockram may choose in future editions to rival the breadth of Levine's coverage. Cockram
(which sells at £158.50) steals a march however by providing a disk--surely indispensable in today's market.

Tony Blackler

© 2021 Sweet & Maxwell and its Contributors

Const. L.J. 1999, 15(5), 407-409

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