Civil Engineering Reference
In-Depth Information
that, assuming there was a contract ('which we may not accept'), their
interpretation 'in these particular circumstances' is correct, irrespective
of the commonly accepted interpretation that it defies. That must be one
of the few joys of being a litigator - fighting lost causes in the hope that
they are not lost! Of course, this is the exception. The vast majority of the
cases I mediate have lawyers who have given a realistic assessment of
the party's chances of succeeding in court, and that assessment has been
accepted by the party. If the chances are poor, they rarely try to bluff it
out in the extreme way I have suggested. But some do, and whilst it
spices up the day, it inevitably makes settlement more difficult.
1.1.3
Incompatible contracts
Whilst the parties may have entered into a clear and sensible main con-
tract, there will be others with sub-contractors and specialists. The in-
tention will always be for contracts to be 'back-to-back' so that the con-
ditions of the main contract are replicated in the sub-contracts. I expect
most are, but I frequently mediate construction cases where they are
not. The intention may be there, but whether it be because of time pres-
sures or particular conditions that the sub-contractor/specialist may
have or unresolved differences that rumble on even whilst the work is
being carried out, the target of all contracts being back-to-back is often
missed. This is particularly common with consequential losses and with
liquidated and ascertained damages. It is very difficult to make a small
but key specialist sub-contractor responsible for full LADs, yet some-
times their work can be on the critical path and so delays may have a
significant effect on the progress of the project as a whole.
1.1.4
All-risk contracts
One-sided contracts inevitably fail, and that inevitably leads to disputes.
There has been a trend over many years for consultants to remove any
client risk and so attempt to put it all onto the contractor. Not only
does this breed a feeling of injustice, but when things go wrong and
the contractor loses, there will inevitably be an attempt to shed the risk.
Standard contracts attempt to spread the risk - some with the building
owner (changes, delayed access, etc.), some with the contractor (delays,
workmanship, etc.) and some shared (inclement weather, acts of God,
etc.). That is for a reason, and when the risk (even, in one case I mediated,
for inclement weather on a major earth-moving contract) is shifted onto
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