Construction Lawyers Research Articles

Evaluation of delays in technical approval of UK Highways Act Section 278 projects

This paper attempts to address the causes of delays to the legal and technical approval processes involved in the creation of agreements authorising works to public highways under s.278 Highways Act (1980) specific to Warwickshire County Council, UK, and whether the type of contract (JCT or NEC) or s.278 agreement (minor or major) has any tangible influence. A series of questionnaires and interviews were carried out on a sample group of individuals including designers, developers, construction lawyers and council engineers with extensive industry experience in relation to s.278 legal, technical, construction and adoption processes. The results revealed the key causes of delays, and therefore, the barriers to prompt and efficient approval processes, as the lack of communication between developer and local authority, inexperienced developers’ engineers, poor quality drawings and insufficient information in the local authority's design guide. These key factors are discussed and recommendations are provided to tackle these issues.

Challenges of Legal Intermediaries in Construction Litigation

Litigation remains the least preferred dispute resolution method because it promotes adversarial relationships between disputants. However, its ability to secure a binding decision has proven its effectiveness in ending disputes. Because construction lawyers typically are only involved after disputes arise, construction professionals who have been part of the project since the inception stage need to fill the knowledge gap of the lawyers about the projects, taking up the roles of legal intermediaries. The communication between legal intermediaries and construction lawyers is one of the determinants of the case verdict because it fundamentally affects the potential of lawyers in preparation for litigation. This paper aims to formulate litigation case management strategies for legal intermediaries. The process included the identification of potential challenges faced by legal intermediaries during preparation for litigation and was followed by suggestions to overcome them. Quantity surveyors (QSs) were selected as the subject of study because the aspects covered by them during litigation preparation are wider than other construction practitioners. Qualitative research was conducted by interviewing 13 respondents who are construction lawyers and QSs who have experience in construction litigation. Among the challenges faced by legal intermediaries in litigation case management are documentation, proceedings, knowledge of the law, personality, and their daily job scope. The findings on their strengths, weaknesses, and suggested methods to overcome the challenges were integrated to form strategies for legal intermediaries in overcoming the challenges faced in preparation for litigation. Apart from contributing to the current body of knowledge, construction professionals could equip themselves by applying the suggested methods from this study to overcome the challenges faced as legal intermediaries.

Construction mediation in Scotland

PurposeThis paper aims to address the knowledge gap, by exploring the attitudes and experiences of mediators relative to the process, based on research with practitioners in Scotland. Recent research on construction mediation in Scotland has focused exclusively on construction lawyers’ and contractors’ interaction with the process, without reference to the views of mediators themselves.Design/methodology/approachThe entire research design of this research was constrained by the small population of practising Scottish construction mediators (thought to be circa. 20 in 2013). The design encompassed a literature search, participant interviews, questionnaire survey and qualitative and quantitative data. The research questionnaire was designed to capture data related to the biography, training and experience of those interviewed before their opinion on the benefits of, and problems with, mediation were sought.FindingsThe results indicate that mediations failed because of ignorance, intransigence and over-confidence of the parties. Barriers to greater use of mediation in construction disputes were identified as the lack of skilled, experienced mediators, the continued popularity of adjudication and both lawyer and party resistance. Notwithstanding the English experience, Scottish mediators gave little support for mandating disputants to mediate before proceeding with court action. A surprising number were willing to give an evaluation of the dispute rather than merely facilitating a settlement.Originality/valueThere are few experienced construction mediators in Scotland, and the continued popularity of statutory adjudication is a significant barrier. Mediators believe that clients’ negative perceptions of mediation are a bigger barrier than lawyers’ perceptions. The mediators wanted judicial encouragement for mediation backed by some legislative support, mediation clauses incorporated into construction contracts and government adoption of mediation as the default process in its own contracts.

Letters of intent: Getting them right

Letters of intent are a fiercely debated topic in the legal sector. Despite their established role in the construction industry, their use is feared to detract from the importance of signing fully negotiated written contracts. This poses risks because of a lack of certainty and so, unsurprisingly, some legal commentators have urged that letters of intent should be completely avoided. Against the competitive and time-sensitive commercial backdrop of the construction industry, letters of intent have become a practical necessity, but how can parties ensure they get them right? In this paper, leading construction lawyers from Hay & Kilner Solicitors demystify the letter of intent document by offering a practical explanation of how it works, where it has caused misunderstandings and which questions are regularly asked about using one in practice — to include compliance queries around timings, finances and legalities. The paper offers a simple checklist of dos and don'ts designed to avoid ambiguity and open-endedness.

Compensation events in NEC3 contracts: case studies from South Africa

Compensation events can have significant consequences on project objectives. However, not much systematic research has been done on the occurrence of NEC compensation event in projects for the purpose of controlling and minimising their impact. The specific objectives of this study are to conduct a systematic review of literature on NEC compensation events and to conduct a systematic analysis of compensation events in four NEC-procured projects in South Africa to examine their extent, effects and sources. Publications mentioning ‘compensation events’ were reviewed based on papers by academic researchers, articles by practitioners in the NEC Users’ Group Newsletter and papers by construction lawyers published by the UK Society of Construction Law. The 84 publications demonstrate 15 operational aspects of compensation events. Thereafter the data on compensation events in four NEC-procured building projects in South Africa (the largest being £9 million) are analysed based on final accounts. The findings demonstrate a significant number of compensation events (165 altogether) with most arising from incomplete or late work information. Employers wishing to control and minimise compensation events on projects should be more decisive about their requirements and implement professional service agreements that incentivise members of the professional team to perform their role timelier and efficiently.

A reflection on construction mediation in Scotland

Recent research in different parts of the UK has pointed to growing acceptance of the mediation process from legal professionals with promises of potential costs savings for end-users. Nonetheless in many jurisdictions take up is low despite positive evidence relating to use and there is scant empirical knowledge about the construction lawyers' role in the referral of cases to mediation and sophisticated evidence relative to lawyer and client interaction in expediting the use of the process. This paper draws on recent work (both interview and questionnaire based) conducted over the past 24 months with construction lawyers and end-users relative to their experiences of mediation in the Scottish construction field. The findings reveal a small yet significant measure of generally successful mediation activity and growing support for the process among both lawyers and end-users. Nevertheless, barriers to mediation's acceptance remain well grounded, both throughout legal and client circles, and various solutions to overcoming such obstacles are examined in the paper. Evidence gleaned in Scotland has significance beyond its borders given the commonality of issues pertaining to mediation growth across all developing jurisdictions and the presence of a dominant adjudication regime that can be seen as a significant inhibiting factor in the use of mediation.

Going Green: Researching in Legal Affairs and Dispute Resolution

Green and sustainable development is a journey toward discovering a new revolution in the built environment. Its destination would create a built environment which would foster wise use of natural resources and ultimately be in harmony with the natural environment. These concepts are generating significant interest throughout the world and causing remarkable changes in the research focus of construction engineering and management. In the last decade, this change has also been visible in the recruitment markets of academia, where universities are now actively recruiting talented academics with research interests in green and sustainable development. Sustainability research covers a large spectrum of topics, such as green purchasing, contract management, conservation policy, construction technology, urban planning, energy, education, health care, environmental management. It has been seen as more than just an environmental issue. Recognizing that these topics are always involved in the change of law and governance, the Journal of Legal Affairs and Dispute Resolution in Engineering and Construction has produced this special issue on green and sustainable construction projects, which has attracted outstanding academics to make their contributions. Although sustainability concerns have already been included in the aims and scope of this journal, this special issue particularly draws the attention to construction lawyers, researchers, and engineers who have opportunities or challenges for researching legal affairs and dispute resolution primarily arising from (1) the enactment of legislation or acts, (2) the changes of standard of care, (3) new ethical requirements, and (4) the changes of contract clauses. We need to better understand the implications of these opportunities or challenges in green and sustainable construction projects. As such, appropriate policy positions and mitigation measures can be developed to ensure sustainability of the industry. Legislation or acts must be enacted in order to control green and sustainable construction. Similar to many other countries, for example, legislation such as the Resource Management Act 1991, the Energy Efficiency and Conservation Act 2000, and the Building Act 2004 covers most of the issues of sustainable management, energy, health and safety in New Zealand. The purpose of the Resource Management Act is “to promote the sustainable management of natural and physical resources,” and avoid or mitigate any adverse effect on the environment arising from the construction activities. For example, proposed developments require environmental impact assessments so as to mitigate possible adverse effects to the environment. The purpose of the Energy Efficiency and Conservation Act 2000 is to “promote, in New Zealand, energy efficiency, energy conservation, and the use of renewable sources of energy.” This act monitors the driving forces of energy efficiency in New Zealand and provides better regulations of the construction industry. The Building Act 2004 requires “buildings are designed, constructed and able to be used in ways that promote sustainable development”. These acts generally reflect the expectations of the Government and the community, and most importantly, regulate the industry to ensure that sustainability is taken into account. “The role of construction professionals goes beyond protecting today’s public, but also to protect our natural environment and future generations.” Other opportunities or challenges for researching legal affairs and dispute resolution are the changing standard of care for construction professionals such as engineers or architects. It is expected that the existing professional practice has been redefined in terms of achieving sustainable designs. It is interesting to see what engineers or architects must do in order to be sustainable and to minimize the legal pitfalls of sustainable design and construction. Engineers should work closely with clients to develop sustainable goals and clarify their standard of care during project development. Similarly, changes in ethical requirements would be considered as another challenge or opportunity. For instance, “sustainable management and care for the environment” has been included in the fundamental ethical value of the Institution of Professional Engineering New Zealand (IPENZ) Code of Ethics. In 2005, this code was revised to incorporate an additional ethical value of professional engineers in. These are as follows:

Feeling Combative? - Let's Dance

The article examines dispute avoidance processes, with a particular focus on analyzing how Dispute Review Boards work, Australia’s history with their use and the role that lawyers, particularly construction lawyers, can and should play in relation to this DAP model.

The selection of arbitrators

The January 1999 issue of Amicus Curiae carried an article by David Winter on “The Selection of Arbitrators”, to which a response by Dr K.V.S.K. Nathan (“The Selection of Arbitrators: another view”) was published in Issue 17, May 1999. The following letter by Charles Molineaux has been received by the editor. Letter from Charles Molineaux (Construction lawyers and international arbitrator; counsel, Wickwire Gavin, Washington DC. Published in Amicus Curiae - Journal of the Institute of Advanced Legal Studies and its Society for Advanced Legal Studies. The Journal is produced by the Society for Advanced Legal Studies at the Institute of Advanced Legal Studies, University of London.

Scottish construction lawyers’ awareness and experiences of alternative dispute resolution

It is widely acknowledged that lawyers generally perform a gate-keeping role, advising clients on the most appropriate form of dispute resolution for particular cases. Is it reasonable to believe that the attitudes of the legal fraternity in Scotland create a real limit on what could be implemented by a government that seeks to promote modern methods of dispute resolution as part of its civil justice reform agenda? Drawn from questionnaire- and interview-based research, the principal aim of this paper is to fill a gap in the literature and establish baseline data on Scots construction lawyers’ awareness, attitudes and experiences of alternative dispute resolution (ADR) and implications for the resolution of construction disputes. There is evidence from the questionnaire survey and participant interviews that more education in ADR procedures and their application could provide further opportunity to develop them as settlement tools in Scotland by building on more positive aspects of responses within the sample analysis. Only some in the legal fraternity have embraced the challenge of what the study has found to be regarded widely as an opportunity. Further education, training and publication of case law involving ADR may be necessary to convince doubters that ADR needs to be part of the menu of methods of dispute resolution for the modern lawyer in Scotland.

Alliance contracting: adding value through relationship development

Purpose – Alliancing and partnering have been extensively used to stimulate collaborative relations between supply chain members as well as to address the need to improve the performance of projects. Recognising the need to build and sustain relationships in alliances, the paper aims to present a model that is developed and tested by industry practitioners who are regularly involved with alliance contracting. The developed model can be used to encourage a culture of reflective learning and mutual trust, beyond merely project‐specific performance outcomes.Design/methodology/approach – To examine the applicability of the conceptual model to alliance contracting in construction an exploratory approach was adopted. A total of 49 in‐depth interviews were conducted over a six‐month period with a variety of industry practitioners (clients, contractors, design consultants, construction lawyers, and alliance facilitators) who had extensive experience with working in alliance contracts. Interviews were used as the ...

Scottish construction lawyers and mediation: an investigation into attitudes and experiences

Purpose – The purpose of this research is to paint a picture of the current utility of mediation in the Scottish construction sector; determine the willingness of Scottish construction lawyers to shift away from traditional dispute resolution approaches towards mediation; and ascertain the drivers towards the adoption of mediatory techniques and the barriers to change.

Historic Cases: Spearin v. United States

When I agreed to write a regular column based upon historic cases, I did not give much thought as to how I would define a historic case. But in this first column I should state my criteria for choosing a particular case or, as we will see on occasion, a pair of cases as historic. A case can become historic because of the judicial stature of the judge who wrote the opinion. Another factor is the reputation of the court that handed down the opinion as a “leading jurisdiction” to which other courts look for guidance. A historic case may change existing law or move it in a new direction. Sometimes such a case clarifies an unclear law. A historic opinion can provide a careful articulation of its holding as well as a coherent rationale for the legal rule announced. Both are needed to guide the bench and bar in future cases as well as guide those who must perform in accordance with the law. A historic case may give its name to a particular legal rule. The rule becomes known by the case name. But at times the case name may have been forgotten as later cases may take on the mantle of the rule and are cited more often. If so, we may be hard put to remember the name of the fountainhead case, though this does not necessarily diminish the classification of the earlier case as historic. That many cases that have followed the rule articulated by the earlier case may make the case historic. A case can be historic because it has been enshrined in the textbooks. A construction law case, for example, can be considered historic when it is known by construction lawyers and generates continued critique and appraisal. My first historic case, Spearin v. United States, fits many of the criteria for the classifying of the case as historic. It set forth a rule that became established and followed. The opinion was written by a famous judge and the case was decided by the highest court in the land. The name of the case became identified with the legal doctrine it generated. We hear many references to the Spearin doctrine. Constant appraisal and study is demonstrated by the frequent conferences and workshops devoted to it. Finally, it has been reproduced in the leading Construction Law texts Sweet and Schneier 2009 , and is one known by the construction bar and others involved in construction. Now let us look at the case. Spearin v. United States was decided in 1918. The opinion was written for a unanimous United States Supreme Court by Mr. Justice Louis Brandeis. Mr. Justice Brandeis was an important and well-known Supreme Court judge. I am certain that his authorship gave the case more significance than it would have had were it written by an ordinary judge. That it was decided by the highest court in the land adds to its stature. A case decided by the United States Supreme Court is a rarity in construction law. Of course, the Court may venture into construction disputes now and then, such as in cases involving affirmative action in awarding public contracts Adarand

An investigation of evaluative and facilitative approaches to construction mediation

PurposeThe paper seeks to examine the debate on mediator style and provide empirical evidence on mediator orientation, which has implications for party choice and the development of professional standards for construction mediators in the UK.Design/methodology/approachThis paper analyses the theoretical arguments and distinctions in mediator style and assesses the available evidence relating to the utilisation of evaluative or facilitative mediator approaches in the UK and US construction industry. The paper reports on data from qualitative interviews with construction lawyers experienced in using mediation in the UK to assess the level of evaluative conduct experienced.FindingsThe findings suggest that interviewees had experienced a mix of evaluative and facilitative interventions by mediators. The data support the contention that construction mediation in the UK mirrors the experience of the USA and is becoming “lawyer‐driven” and adversarial, with mediators utilising evaluative techniques which some members of the legal profession prefer.Research limitations/implicationsThe qualitative data are based on a small sample of mediation users in the UK construction industry. However, interviewees were selected from respondents to a randomly conducted large‐scale postal survey of commercial and construction lawyers. All interviewees were repeat users of the process and all but one had received training in mediation or are practising lawyer‐mediators.Practical implicationsThe data provide evidence of different mediator techniques currently utilised in the UK construction industry and the practices of lawyers in the mediation process. The findings have implications for party choice and should inform the development of professional standards in construction mediation practice.Originality/valueThe paper provides original data on the practices of mediators and lawyers in construction mediation.

Landslides in Practice: Investigation, Analysis and Remedial/Preventative Options in Soils: (Derek H. Cornforth)

Dr. Derek Cornforth, who founded Landslide Technology in Portland, OR, in 1983, has turned more than 50 years of working with landslides into an excellent publication that will become the book used most by geologists and geotechnical engineers who perform landslide remediation and prevention. To date, it is the most complete and comprehensive text written on the practice of working with landslides. This book is written for the practicing engineer and geologist and for all students preparing to concentrate in this area. It will fast become the textbook of choice for graduate courses in landslides. I hope to start using it next year in my course! It should be found on the desk of everyone working with landslides because it contains so much information, it is so well organized which makes things easy to find, and it is well written! It should be purchased by all university libraries that have applied geology and civil engineering programs. I can also see the book being used by construction companies, land developers, landscape architects, and lawyers who work with the construction industry. Cornforth's book is divided into three parts. The first 12 chapters deal with investigations and analyses of landslides and the theory behind landslide work. Chapters 13 to 23 are the book's focal point and deal with all of the practical …

The representation of the professions in the cinema: the case of construction engineers and lawyers

This paper considers how popular culture, especially the cinema, depicts two professions; namely, engineering and the law. It argues that despite the large number of engineers working in the developed economies their lives and their work are seldom portrayed in cinema. In contrast, the legal profession is ubiquitous in its presence in film. The paper seeks to use different forms of analysis, such as culturalism, Marxism, structuralism, feminism and post‐modernism when applied to film theory in settings where engineers and lawyers are depicted. The paper makes a distinction between the presentation of the work of engineers and lawyers in ‘real life’ and cinematic form. The process of engineering in real life is visible yet in cinematic terms it is ignored. In contrast, the legal process is invisible in real life but has high dramatic content in the cinema. When considering the products of the two professions, engineering produces tangible products whilst law produces intangible yet highly cerebral discourses. Yet, in the cinema, the engineering product is a backcloth for other messages where in law the legal product provides a backcloth for a central and dominant message about the legal process. The conclusion is that engineers have to re‐engineer themselves to be more visible in society if they are to be regarded as cinematic heroes.

Survey of construction lawyers' attitudes and practice in the use of ADR in contractors' disputes

Continuing a survey of contractors' perceptions about alternative dispute resolution (ADR) this paper seeks to report an investigation of the level of involvement of legal advisors to the construction industry in the dispute resolution process and the perceptions that legal professionals have about the use of ADR in construction disputes. The research findings are that contractors are likely to involve lawyers in the dispute resolution procedure, particularly when disputes concern a legal issue, when the parties to the dispute are entrenched in their argument, or when the other party insists on using legal professional assistance. In these defined circumstances, legal advisors will be influential in determining the potential use of ADR. The paper concludes that lawyers are unlikely to recommend ADR for most disputes between contractors, particularly if the dispute resolution process is perceived to involve the use of delay by main contractors, if the parties are fixed in their arguments or if they are exhibiting adversarial behaviour in their approach to the dispute. In these circumstances lawyers and their clients prefer the force of the formal systems over conciliatory ADR procedures.

Mediation and mini‐trial of construction disputes

Addressed in the paper are specific attitudes and experiences of construction lawyers using mediation and mini‐trial techniques. The paper represents one of the first empirical investigations of non‐binding dispute resolution in the construction field.