Civil Engineering Reference
In-Depth Information
Up until recently it was thought that an expert was immune from any claim for
negligence on the part of his client. However, this immunity (at least in certain cases)
no longer applies following the decision of the Supreme Court in the English appeal
of
Jones
v.
Kaney
(2011).
Some guidance as to the duty of an expert in a construction dispute litigation was
recently given by the court in the English case of
Walter Lilly & Company Ltd
v.
Mackay and DMW Developments
(2012). The court in particular considered the cor-
rect approach to expert evidence on demonstrating delay and the meaning of prac-
tical completion. In addition, it was not for an expert to stray into legal matters, for
instance, basing a report simply on the premise that the other side had not proved
its case. See also
National Museums and Galleries on Merseyside (Trustees of)
v.
AEW
Architects and Designers Limited
(2013), which reinforces the importance of an expert
being truly independent.
1.4 Types of construction contract
Before issuing an invitation to tender or selecting a contractor, the employer will need
to consider the appropriate type of construction contract and form of contract to be
adopted. The contract documents are generally prepared on the advice of the project
manager, architect or quantity surveyor, or in the case of complex procurement, by
legal advisers. Where the building contract is being competitively tendered, the form
of contract should be included in the invitation to tender issued to tenderers.
1.4.1 Procurement routes
There is a variety of different types of contractual arrangement which can be chosen.
In smaller projects the contract may comprise simply a quotation by the contractor
which is accepted, with or without qualification, by the employer. The quotation may
have standard terms and conditions attached to it. The parties may negotiate over the
incorporation of all, or part of, the standard terms and conditions into their contract.
On the other hand, the perception of those within the construction industry is proba-
bly that the contracts regulating larger projects have become more and more complex
over the years. The procurement route and type of contract chosen by the employer
will to a large extent depend on the employer's key priorities, and the circumstances
of the proposed project, such as speed, certainty of cost, and status of design.
Under traditional procurement, responsibility for the design process remains sepa-
ratefromtheconstructionprocess.hecontractorusuallyhasnodesignresponsibility
and its obligations are limited to the execution of the works and the provision of mate-
rials to a design provided by the employer, unless it is contracted to design a specific
part of the works, known in the JCT/SBC contracts as a 'Contractor's Designed Por-
tion'. The contract is usually administered by the employer's professional team.
Nowadays, the most common type of procurement route in major projects is prob-
ably that of design and build, in which the contractor undertakes both the design and
