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I’m amphibious about it
The reform of the Construction Act will probably
right some obvious wrongs, but why couldn’t it have been written
in plain English? Take the payment rules for instance …
“Hear this: the industry will be utterly
fogged by the language in the proposed rules, which will govern
their waking and sleeping hours. Even if what is said is oh so
sound, it’s mud”
The tadpole has arrived. It has no arms and
no legs but it does have a name. It’s the Draft Construction
Contracts Bill and if it is passed in law it will replace the
adjudication and payment law in the Housing Grants Construction
and Regeneration Act 1996. Parliament will probably turn the
taddie into a frog.
Now then, it’s four years since Gordon Brown
announced a review of what you and I call the Construction Act.
Four bloomin’ years! And now that I have the draft bill on my
desk I want to shout, “Hurrah! At last! Well done!”
But I’m in that mud again. Well, actually I’m
out of my depth in it because this is the world of the
parliamentary draftsman. Parliamentary draftsmen and me and
plasterers don’t mix. And yet and yet … these drafting folk are
drafting rules for my plasterers. Hear this: the construction
industry will be utterly fogged by the language in the proposed
rules, which will govern their waking and sleeping hours. Even
if what is said is oh so sound, it’s mud.
So what are the proposed revisions? Do you
recall that the act requires a contract to be “in writing”
before it qualifies for adjudication and payment rules? How much
money has been wasted conducting an adjudication only to find
that the court would not enforce it because of a technical knock
out? We call that the section 107 rule. No mud here in
the bill. Section 107 is repealed.
But slotted back in to the bill is a new
command. Seemingly, the contract must provide “in writing” the
right to adjudicate and “in writing” the effect of the
adjudicator’s decision and if not then the Scheme for
Construction Contracts applies. Then the new payment rules
demand that the duty to give notices be “in writing” in the
contract … and if not, the scheme applies.
Do you sniff a great big waste of words here?
It would be so easy to make the act an implied term that is
automatically imported into the contract. Why not simply say (1)
the following type of works are construction contracts, and (2)
all such contracts shall enable a party to adjudicate and (3)
all construction contracts shall require payments to be made in
the following way.
Banned in the new act will be the idea that
whoever brings the adjudication has to pay all the costs. That
idea got the thumbs down from a lot of folk. So it goes out.
Mind you, it could be spelled out more simply. There is an
entire awkward page on it … more mud.
Banned also is the idea that there can be a
clause in the contract making an interim payment decision
binding if it is made by an outsider to the contract – say an
architect or PQS or engineer. In other words, it’s not on to
shut out the review of a payment certificate.
“Going out, hurrah, is the old payment and
withholding notices system. Instead we have another mistake …”
And now we get more deeply in the mud with
the proposed payment rules. Going out, hurrah, is the old
payment and withholding notices system. It was painful. Instead
we have another mistake. The parliamentary draftsmen insist on
using phrases such as “payee notices”, “notified sums” by payees
if a payee notice is not given by the payer. Oh dear. There is a
“payment due date” and a “final date for payment”. The essence
of the system requires, first, that the payer notifies the payee
what it intends to pay, how it is calculated and when it will be
handed over. If not given, the payee may give its own notice and
it becomes the notified sum. That sum (whoever gives it) is to
be paid on or before “the final date for payment”. But if the
payer wishes to pay less then it gives a “pay less notice” and
that also has strict rules.
So, in short, if a builder fails to inform
his subcontractor of sums due and how calculated and if the
subcontractor has sent or sends his valuation to the builder
with chapter and verse, that subcontract amount is payable
unless a pay less notice is issued swiftly by the builder.
Then if the subcontractor is undervalued or
underpaid it can pack up and go fishing. As a kid, I used to go
fishing … with a sixpenny fishing net, jam jar and my wellies.
The jam jar was for the taddies and the wellies for the mud.
None of the tadpoles survived my jam jar. But one day many years
later I met a beautiful parliamentary draftsman and when I
kissed her, she turned into a frog. I wonder if this bill is
written by that frog?
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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