Friday
27 September 2002
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Lawbuild provides construction law expertise
to save clients time and money.
A personal message from Lawbuild's Principal
David Lewis
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Dear Reader
The Lawbuild Newsletter receives praise
from many of its readers. But one person never seems to
be satisfied and is constantly criticising it.
Who is this curmudgeonly reader? It is, of
course, me. Believe it or not, I email this newsletter
to myself as well as to you, and I try to read (or re-read)
it as if someone else had written it and sent it to me.
This may be evidence of a split personality, or worse, but
before you summon the two men in white coats let me say
that the continual pressure from David Lewis the reader
upon David Lewis the editor does lead to improvements, which
I hope you will find reflected in this issue.
In particular, and for the first time, this
issue includes a contribution from a non-Lawbuild construction
professional. In the first article of a two-part series,
Dr James Campbell, Director of Conservation at Finch Forman
Architects and an architectural historian, examines critically
the rôle in planning inquiries of expert
witnesses as to the historical significance of building
fabric. Sometimes a writer can impart more than he consciously
intends and it struck me quite forcibly as a lawyer, reading
Dr Campbell's first article, that it goes beyond conservation,
demonstrating a technique for undermining your opponent's
expert witness - in any field - by attacking the
relevance of his qualifications. Anyone with an interest
in conservation or in litigation involving expert witnesses
should read this article.
* *
*
You are a person with an interest in construction,
business networking, or both. I am the Principal of a law
firm specialising in non-contentious construction and
contracts. How can we help each other's organisation to
survive and prosper in the present indifferent economic
climate?
I don't have anything like a complete answer
to that question, but I do know that construction and contracts
lie at the heart of every successful national economy, providing
the physical infrastructure and commercial security which
all businesses need.
I hope that the Lawbuild Newsletter
will, over time, make some small contribution to our readers'
knowledge and practice of construction and contract law,
as well as entertaining and enlightening them.
With kind regards.
Principal of Lawbuild, solicitors
Editor of the Lawbuild Newsletter
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Contents
Lawbuild invents the world's first
random access newsletter
Beware the expert witness in conservation
cases: Part I
How to avoid the builders from hell
A glossary of construction law
expressions: D is for .
A window on the real world of construction
To
keep you occupied ...
Business Network International®
About Lawbuild
They liked it
Newsletter stuff
Contact information
Legal disclaimers and warnings relating to this
newsletter: please read
You've come to the end
Return to
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index
Index
Ann Wright
Architectural historians
Back issues (of
Lawbuild Newsletter)
BNI
(Business Network International)
Builders from hell
Business
Network International (BNI)
Campbell,
Dr James
Conservation
and the expert witness
Construction
Manager
Contacting Lawbuild (and
see Feedback)
Defects
liability period
Deleterious
materials
Design
and build
Designer
Developer
Development
agreement
Direct
loss and/or damage
Disclaimers (legal)
End of document
Expert
witnesses
Feedback
Hell, builders from
How to read this newsletter
Intellectual property
(Lawbuild's)
Lawbuild
Legal disclaimers
Planning inquiries (conservation
cases)
Puzzle
Testimonials
Top of the
document
Unsubscribe, how to
Lawbuild invents the world's
first random access newsletter
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I could have called this section "How to read
this newsletter", but then your eyes would have glazed over,
as mine do when faced with vaguely patronising "How to"
text.
All I will say is this. You can read this
newsletter from beginning to end in the traditional way.
Or you can use the index and the hyperlinks to read what
interests you, and skip the rest.
Beware the expert witness in
conservation cases: Part I
An article by Dr James Campbell
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Recent planning inquiries in the City have
highlighted how much emphasis is placed on the opinion of
expert witnesses from English Heritage and elsewhere whose
primary expertise is in architectural history, but just
how reliable are such witnesses and can they really be expert
at all? Dr James Campbell is Director of Conservation at
Finch Forman Architects. He is an architect and an architectural
historian, and in a two-part article he looks at what kind
of advice such witnesses can offer and how reliable it is
likely to be.
Part I, in this issue, examines the selection
and limitations of witnesses for considering the historical
significance of building fabric. Part II, which will appear
in Lawbuild Newsletter No. 5 (November 2002), will look
at the selection and limitations of witnesses used to date
the historic fabric.
What expert witnesses promise to provide
Expert witnesses in conservation cases and
planning inquiries may be called upon to provide opinions
on a wide variety of subjects. They are often chosen through
a rather ad hoc approach from a small number of individuals
who regularly carry out such work. Building conservation
is a much more complex subject than those outside it may
understand. Plenty of people are ready to claim expertise,
but real experts in many parts of the subject are few and
far between and may have neither the inclination nor the
time to undertake such work.
I am not primarily concerned here with cases
to do with conservation which address duties of care or
professional negligence. Such cases will be dealt with
in much the same way as professional negligence cases and
the expertise of witnesses in such cases is relatively obvious
and understood. Rather I am interested here in those cases
where the primary objective is to establish one of the following:
- The historical significance
of a building
- The age of the building
or parts of the building.
Any planning inquiry or legal case will no
doubt wish to consider a range of other factors, but these
are the areas which would generally require the services
of an expert witness in architectural history. This article
is thus divided into two parts. The remainder of this Part I
looks at the selection of expert witnesses for considering
the historical significance of a building, while Part II,
which will appear in Lawbuild Newsletter No. 5,
looks at the problems of dating buildings.
Who can best decide on the architectural
significance of a building?
Of all the matters that are brought forward
for and against works to a historic monument or building
the most contentious is always likely to be its historical
significance. But who is best placed to issue a verdict
on such a matter? The answer seems at first straightforward:
it must be an "architectural historian". Surely that is
the very definition of architectural historian. Yet architectural
historians are strange creatures and less well defined as
a group than one might expect.
Most architectural historians start off as
plain "art historians", taking a course in "history of art"
at one of the many recognised universities around the country.
The undergraduate degree is likely to be based principally
upon painting and sculpture, with specialist options in
the final year in architectural history. Master's degrees
in architectural history do exist, but these are short (usually
one or two years). Such a degree tends to concentrate on
a broad-brush introduction to architectural history in western
Europe, with a notable bias in most courses towards Italian
architecture or International Modernism. It is thus perfectly
possible, if not normal, for someone calling themself an
architectural historian to have two degrees in the subject
and yet have only the slightest knowledge of English architectural
history. A mere MA alone should never qualify one as an
architectural historian, let alone as an expert witness.
A doctorate is indicative of a definite level
of attainment and implies an understanding of the limitations
of knowledge and evidence and the basis of research. But
even a doctorate should be treated with caution. Doctorates
are highly specialised and the subject might well have no
relevance to English architectural history or the matter
at hand.
The only real test is the publication record
of the individual. What and how much has the individual
published? How relevant is it and how well-respected are
the journals or publishers concerned? How is the individual
rated by other academics and in the subject as a whole?
From this it should be obvious that very few
people really qualify to be called as expert witnesses in
architectural history. Only a handful of people obtain
doctorates in architectural history every year, and very
few of those are in English architectural history. Of those,
few will go on to do further research, publish and take
up academic positions because there are few posts available.
Some will go to work for English Heritage or the National
Trust or some other national body, but most will leave the
sector altogether.
It might be asked at this point whether this
really matters. There are surely some exceptionally knowledgeable
amateurs? Every conservation officer is likely to be knowledgeable
about the local area and to know a number of local amateur
architectural historians who are extremely enthusiastic.
But they are poorly placed to answer the question being
asked. It is all very well to know how important something
is in the local context (and indeed such evidence may be
important in its own right) but it is quite another to say
that something has "architectural significance".
Here we meet the nub of the problem. Every
building is unique and, if one draws the lines closely enough,
likely to be significant in some way or other, but does
it have a significance to architectural history? The local
historian is likely to think that even quite minor buildings
are significant. Thus the natural presumption is that one
needs an architectural historian with a less biased viewpoint,
and this is undoubtedly the case. Yet even well-published
experts are still biased towards their own field of interest
at the expense of others. There are perhaps a few dozen
leading architectural historians in this country, and yet
it is doubtful that in many cases they would agree on what
does or does not have "architectural significance". If
they cannot decide, who can? The real question is
perhaps whether such evidence should be allowed at all?
Dr Campbell is a Fellow of Queens' College,
Cambridge where he is Director of Studies in both Architecture
and History of Art and publishes widely on the history of
building construction. He can be contacted by emailing
drjamescampbell@finchforman.com.
How to avoid the builders from
hell
By David Lewis
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An important and recurrent Lawbuild client
is the houseowner who is experiencing the builders from
hell. (About as frequent is the builder who finds himself
at the wrong end of the client from hell, but let's
leave that for a future Lawbuild Newsletter.)
I need not dwell long on the experience itself.
Its unique joys are well known; perhaps you have learned
of them from a relative, friend or neighbour, or have even
suffered them yourself. The work will be prolonged indefinitely,
if not abandoned before completion; in fact it may never
be fully completed. The work will be full of defects, which
the builder will fail to remedy. You may find you have
overpaid the builder. You may receive a large claim from
him. The occurrence of one or more of these events in sufficient
magnitude will denote the infernal provenance of the builder
concerned.
Happily there are many competent builders around.
Some of them we are proud to include among our clients,
and it is though them that we have become familiar with
the client from hell.
If you wish to avoid the builder from hell,
or to minimise the consequences, here are some of the things
you should do.
- Visit http://www.companieshouse.gov.uk/info/
and make a company search of the builder before engaging
him. (You can pay £4 by credit card and download the
last filed accounts.)
- Obtain written or oral references
from current or previous clients.
- However, don't assume that
because the builder did a perfect job for your neighbours
he will do the same for you.
- Consider employing a qualified
project manager and/or quantity surveyor if the size of
the project warrants the additional expense. It may save
you money in the long run.
- On this theme, many homeowners
either don't know that they need project management and
cost control or assume that their architect or other designer
has the necessary skills. Check if this is the case before
you rely on your architect for these functions.
- Enter into some sort of
formal agreement. You could purchase the JCT building
contract for a home owner/occupier (£8.50 plus VAT - buy
it through http://www.ribabookshop.com or other
sources).
- Alternatively, write the
builder a letter stating the agreed terms, including at
least the following:
- Parties' names and addresses
- Site address
- Short description of the
work
- List of the drawings and
documents which give a full description of the work
(see below)
- Whether you or the builder
are to apply for planning permission, building regulations
approval, and party wall consents or awards
- Whether you or the builder
are to insure the works in progress (and see below)
- Date when the builder
is to begin the work
- Date when the builder
is to finish the work
- Any restrictions on working
hours and days
- Any requirements relating
to the security of the premises
- Contract price
- Each instalment of the
contract, and when it is payable (see below)
- Agree to pay the builder
according to the stages of work actually achieved; and
not in accordance with a timetable (i.e. on fixed dates),
because if the builder is running late you don't want
to become liable to pay an instalment before the corresponding
work stage has been completed.
- Be clear about the work
which the builder is to do. If there is no detailed specification,
write a performance specification which describes your
expectations of the finished work and include it in the
contract.
- Make sure the works are
covered by your building and contents insurance, unless
the builder has agreed to insure them
- If the builder is to insure
the works, ask him to produce evidence of his "all risks"
insurance policy. Check it is up to date and covers the
construction period
- Ask to see the builder's
public liability policy and check that it is up to date
and covers the construction period
- Don't pay for materials
in advance. Professional builders don't normally ask
for this; they finance their work upfront.
- Don't pay anything without
receiving an invoice for it. An uninvoiced request for
cash is not the sign of a professional builder.
- Don't pay cash with no invoice
if you suspect that the builder is trying to evade VAT
or income or corporation tax. (Apart from legal and moral
considerations, if he's prepared to defraud the tax authorities
he won't think twice about doing the same to you. And
once again, this is not what you expect from a professional
builder.)
A glossary of construction law
expressions: D is for .
Return to
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We continue our alphabetical definitions.
Defects Liability Period
A period of usually twelve months following
practical completion, during which the employer can require
the contractor to return to the site to complete any omissions
in the works and to make good any defective work or materials.
When all omissions and defects have been made good, the
contract administrator or Employer's Agent must issue a
certificate or statement of completion of making good defects.
Deleterious materials
Materials or building techniques which are
dangerous to health, or which are environmentally unfriendly,
or which tend to fail in practice. Often listed in property
agreements, appointments and building contracts, where the
developer, consultant or contractor is required not to use
them.
Design and build
A popular method of procurement under which
the contractor completes the design started by the designers
of the employer. Flexible, because the initial design can
be as little as a performance specification (and sometimes
not even that) or a fully developed set of scheme drawings.
Cost-effective, because the price is fixed: provided the
employer doesn't make Changes to the Employer's Requirements
(i.e. variations).
Under design and build, the designers do the
initial design; and the contractor completes the design
and constructs the works.
A design and build contract comprises articles
of agreement and conditions of contract, Employer's Requirements,
Contractor's Proposals and a Contract Sum Analysis.
Where the contractor agrees to take responsibility
for the Employer's Requirements, it is usual for the building
contract to provide for him to take over the designers'
appointments, stepping into the employer's shoes by way
of a deed of novation. The designers may then be required
to give a warranty to the employer.
The JCT produces the most widely used design
and build contract, called JCT 98 WCD (i.e. With Contractor's
Design).
It also publishes a variant of its main traditional-procurement
forms of contract, called JCT 98 With Contractor's Designed
Portion Supplement, which requires the contractor to complete
the design of pre-defined elements.
Designer
An architect, a structural engineer, a mechanical and electrical
services engineer, or other designer of any works. Can
include a subcontractor.
Quantity surveyors are called "designers"
under the Construction (Design and Management) Regulations
1994 (site safety rules, abbreviated to "CDM"), because
they compile specifications to which "real" designers
have contributed, but otherwise they will typically reject
any design responsibility or any description of their services
as including design.
Developer
The person commissioning works from consultants
and a contractor. Same as the client or employer.
Development agreement
An agreement between a landowner (often a recent
or prospective buyer) and a developer, requiring the developer
to procure works, usually with a view to producing an income
from letting the completed units. The landowner and the
developer may share future revenues.
Why doesn't the landowner cut out the developer
and commission the works himself? Because the developer
may have introduced the site to the landowner on condition
of further involvement, and/or may have more expertise in
direct developments than the landowner, and/or may have
relationships with consultants and contractors which enable
him to create a profitable scheme.
Direct loss and/or damage
Damages recoverable by the contractor from
the employer under JCT contracts for various happenings
which are considered to be the employer's responsibility
(such as late instructions). The same events will also
entitle the contractor to an extension of time.
A window on the real world of
construction
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Construction Manager is the magazine
of the Chartered Institute of Building, and is published
by The Builder Group Ltd and the CIOB. We were sent a complimentary
copy of the July/August 2002 issue, and found it a very
good read.
If you want a comprehensive overview of the
construction industry there is, of course, no substitute
for Building, the flagship magazine of The Builder
Group, which also contains excellent legal articles each
week. But for a real insight into what happens on the ground,
you ought to read Construction Manager.
Things I learned included -
- thanks to quantity surveyor
Ann Wright, a bit of construction industry argot I'd never
heard before (did you know that a "hospital job" is industry
slang for a simple project?)
- what really happens in the
tendering process ("Red-faced readers reveal their most
embarrassing tendering cock-ups")
- how contractors can kill
their subcontractors by kindness, and how they can win
by actually helping subbies who are facing financial
difficulties, all explained by editor Rod Sweet
- what it's really like being
a project manager.
The annual subscription to Construction
Manager is £50 (overseas £60), from 01344 630700. The
issue price is £6, but I haven't seen it on sale anywhere.
Have you?
To keep
you occupied .
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If you're reading this you may have time on
your hands, so why not give your brain a little exercise?
Here is a puzzle to keep you occupied until it's time to
go home.
The first email we receive with the correct
answer will win the sender a £15 book token and a prominent
mention in Lawbuild Newsletter No. 5.
The wireball
A wire 0.25mm in diameter is tightly wound
into a ball with a diameter of 60cm. The wire is bound
so tightly that there is no air gap. What is the length
of the wire?
Business Network International®
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Lawbuild and David Lewis are a member of the
Victoria (London) Chapter of Business Network International
(BNI).
BNI is a business and professional networking
organisation whose purpose is to generate quality referred
business for its members. BNI can claim to be the most
successful organisation of its kind in the world, as it
records the business transacted on a weekly basis. In 2001
the 50,000 members of BNI worldwide passed 2,100,000 referrals
generating over £500 million of business. Currently, there
are more than 2,300 groups, of which 330 are in the UK and
Ireland.
BNI groups limit membership to one person per
business, so members have an opportunity to lock out their
competition.
BNI insists on references before a member can
be accepted, and requires members to sign up to a code of
ethics. These safeguards, together with testimonials from
other members, promote confidence in the products and services
offered by members. So if you need a fit-out contractor,
an architect, a supplier of blinds and curtains, a life
coach, an IT support company, a financial adviser, a web
designer, a telecommunications company, a printer, or an
accountant, before picking up the Yellow Pages it may be
worth having a word with us.
You can also contact us to ask about the benefits
of becoming a BNI member, and we can arrange for you to
attend one or two meetings as a visitor and without obligation.
To learn more, visit the BNI website.
About Lawbuild
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Lawbuild is a specialist construction
law practice offering expert advice and services to anyone
carrying out or lending money for construction, and to any
buyer, seller, landlord or tenant of recently built or refurbished
property. We are experienced, thorough and professional.
Our aim is to save clients time and money, and our charges
are very reasonable.
Lawbuild is equally at home with contracts
for services and with many other kinds of non-specialist
agreement.
Lawbuild's principal, David Lewis, has more
than 25 years' experience in contracts and construction
law.
They liked it
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Some comments we received on
Lawbuild Newsletter No. 3.
"Many thanks for sending over your newsletter.
I have found it very informative and I think it has been
put together very well indeed . I have sent a copy over
to a CEO of a Charity I know ." James Carroll, Admiral
Voice & Data Ltd, Luton.
"Fantastic, David. This is looking really
good." Mark Sinclair, Hubbub (marketing consultants),
London W1.
"[T]hanks for the newsletter, particularly
the striking photograph of the principal." Ralph Grenville,
senior vice-president, B.I.E. International Inc., Houston.
"Please remove me from your mailing." R.F.
(Consider it done, Mr F!)
"[T]hank you for your newsletter . I did find
it very interesting and enjoyable to read." Gary Lee,
Alpine Air Conditioning Ltd, London NW11.
"[T]hanks for sending me yet another impressively
produced Newsletter - where do you find the time?" Peter
Buechel, Alexander Paul (solicitors), Exeter.
"I will be away from the office from 2 April
2002 on maternity leave." V.D., Peterborough.
"[T]his is jolly good, well done!" Jonathan
Silverman, Silverman Sherliker (solicitors), London EC2.
"Thank you for your Lawbuild Newsletter No.
3 that I found interesting to read . Best wishes for the
success of your newsletters." Cyril Peters, Cyril Peters
Associates (construction and cost consultants), project
managers.
"Many thanks for your Lawbuild newsletter no.
3, which I found really informative, and trust that you
will leave our name on the circulation list for future publications."
Patrick Pepper, Press & Starkey (chartered quantity
surveyors, project managers), Maidstone.
Newsletter stuff
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Pass it on
Please forward this newsletter to anyone you
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Tell us
All feedback is very welcome.
We would like to hear from you if you have any comments,
queries, corrections or suggestions.
Contact information
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Here's how to get in touch with
us:
Email
newsletter@lawbuild.co.uk
(better than replying to the email enclosing this newsletter
because when we print your reply we'd rather not end up
printing the entire newsletter!)
Phone
020 8346 6424
Fax
020 8346 0745
Mobile
078 8775 7606
Post
David Lewis
Lawbuild, solicitors
37 The Grove
LONDON
N3 1QT
Website
www.lawbuild.co.uk
Legal
disclaimers and warnings relating to this newsletter: please
read
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Disclaimers
Lawbuild is providing this newsletter on an
"as is" basis and makes no representations or warranties
of any kind with respect to this newsletter or its index
and disclaims all such representations and warranties.
In addition, Lawbuild makes no representations
or warranties about the accuracy, completeness, or suitability
for any purpose of the information published in this newsletter.
The information contained in this newsletter may contain
technical inaccuracies or typographical errors. All liability
of Lawbuild howsoever arising for any such inaccuracies
or errors is expressly excluded to the fullest extent permitted
by law.
Neither Lawbuild nor any of its employees or
other representatives will be liable for loss or damage
arising out of or in connection with the use of this newsletter.
This is a comprehensive limitation of liability that applies
to all damages of any kind, including (without limitation)
compensatory, direct, indirect or consequential damages,
loss of data, income or profit, loss of or damage to property
and claims of third parties.
Notwithstanding the foregoing, none of the
preceding exclusions and limitations is intended to limit
any rights you may have as a consumer under local law or
other statutory rights which may not be excluded or in any
way to exclude or limit Lawbuild's liability to you for
death or personal injury resulting from our negligence or
that of our employees or agents.
Intellectual property
The Lawbuild trade mark has been registered
under the Trade Marks Act 1994 of the United Kingdom of
Great Britain and Northern Ireland in respect of Classes
16 and 42, and application is pending in respect of Class
41. All other trade marks, brand names, product names and
titles and copyrights used in this newsletter are trade
marks, brand names, product names or copyrights of their
respective holders. No permission is given by Lawbuild
in respect of the use of any of them and such use may constitute
an infringement of the holder's rights.
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We hope you've enjoyed reading Lawbuild
Newsletter No. 4, and we look forward to hearing from
you at any time.
