Wellies, muck and diggers

Construction dispute books, however erudite and authoritative, must brim with experience of the real world if they’re to be of use to those at the sharp end

“For umpteen years, judges have explained that causation is a matter of ‘common sense’. But as one man’s common sense is the next man’s nonsense, they have been miles apart”

Let’s look at some recently published construction dispute books. They all get good marks out of 10, except that two points are deducted from each because they don’t include a CD-ROM. Then take away another two points because there is no free download.

Download? Yes, for the new electronic book-reading gizmo that I want for Christmas – one with a natty book-page-size screen that makes the downloads look as though they are printed on paper. So come on, my publishing chums, shake a leg.

First out of the traps is the fourth edition of The Arbitration Act 1996. Yes, yes I know we talk endlessly about adjudication these days; so what’s happening with its big daddy, arbitration?

Actually it’s alive and kicking; 2007 is the busiest year I’ve ever had with construction industry arbitrations. Remember, arbitration is binding while high-speed adjudication is binding only until an arbitrator or judge makes the dispute forever binding.

The book’s authors, Bruce Harris, Rowan Planterose and Jonathan Tecks, are very experienced arbitrators; two in construction, the third in shipping. The temptation with a book like this is simply to tell the reader what each clause of the legislation says. The authors do that, of course, but they also tell us what it means and why it is there. Experience bleeds through each summary of every clause. You can feel the “ifs” and “buts” and the “oh, by the ways” they have encountered in real life.

Causation in Construction Law by Daniel Atkinson is a triumph. Okay, okay, I admit it: this is because it is a subject I find especially fascinating. Did I hear the work “anorak”? The truth is I make my living because very few people in the disputes business even get their minds around causation.

Humpty Dumpty sat on the wall/Humpty Dumpty had a great fall … But what was the cause? Some folk never even consider cause: they leap from the incident to the claim for money.

Atkinson knows about claims and disputes. And by gum he now knows a heck of a lot about causation in construction law. He trained as a chartered engineer before becoming a barrister. He is a busy dispute sorter-outer in civil engineering.

But my heart fell when Atkinson started to explain concepts of causation. Crumbs, it is terribly learned! At the complex explanation of “induction from uniformity of sequence”, I yelled: “But Danny, where art thou, my erstwhile engineer, clad in wellies and muck and diggers?”

Then the penny dropped: this true son of the construction industry was wrestling with common sense. For umpteen years, judges have been explaining that causation is a matter of “common sense”. But as one man’s common sense is the next man’s nonsense, the judges have politely been miles and miles apart on the meaning of the term. And here was my construction industry friend trying to make sense of it.

Happily, the book soon gets into its construction industry stride and begins to talk wellies and muck and diggers. Buy it.

Chern on Dispute Boards deserves more space, but is a last-minute arrival on my desk. Cyril Chern is a chartered architect as well as a barrister, so he, too, knows his construction business. He has served on disputes boards all over the world but admits that little is known about them – hence the book. In short, they are standing committees or groups appointed to visit the project from time to time and be on hand to deal with disputes.

There are different notions about the board’s role. Some make binding decisions, that is, adjudicate. Others make recommendations. Some mediate while others advise. But some do everything. The truth is that the system is still maturing and trying to accommodate hugely differing ideas about building dispute management. This is a must-have book for grown up contractors.

Readers are invited to forward recent judgments for reporting in this column (with full acknowledgement) to: Tony Bingham, 3 Paper Buildings, Temple, London EC4Y 7EU. DX: 37164 Biggleswade

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