C'mon everybody

End the dispute about the meaning of "dispute". In spite of Sir Thayne Forbes' best efforts in the Beck Peppiatt case (March 2003), litigation about the meaning of "dispute" has rumbled on. My plea to all Technology and Construction Court judges is to stick to the straightforward definition of the Court of Appeal in the Halki case, namely that there is a dispute once money is claimed, unless or until there is an admission that a sum is due and payable. The varying approaches of the judges to this question have sown more confusion than clarity.

No more partnering, teamworking or collaborative contracts. Before we clog up the industry with yet more forms, let's get some experience of those contracts so far produced. When it comes to partnering, the priority is getting the procurement process right and ensuring that the relationships are really based on trust.

A clear code of ethics. The Society of Construction Law's project for developing a code of ethics for the industry gets under way in earnest in 2004. Let's ensure that we have wide coverage for any such code and that it is capable of enforcement.

Sensible design liability for contractors. I hope the Joint Contracts Tribunal can overcome the impact of Co-operative Insurance Society vs Henry Boot (July 2002). Judge Seymour held that a contractor who has an obligation to "complete a design" undertakes that the whole of the design has been prepared with reasonable skill and care, even if most of the work was done by consultants beforehand. This case dealt with a contractor's responsibility under the JCT's Design Portion Supplement. The JCT is discussing an amendment to this form to overcome this result.

I hope it succeeds, but am not holding my breath.

Before we clog up the industry with yet more forms, let’s get some experience under our belts of those produced

More clients to abandon retentions. Are you operating within a retention-free zone? Hopefully you will be during 2004. Retentions should not be a feature of partnering or teamworking arrangements (unless you happen to be a subcontractor "partnering" with Jarvis.)

An inkling of insolvency law reform. The demise of Ballast UK has served to reinforce the appalling degree of exposure of the supply chain to upstream insolvencies. We must draw on the experiences of other countries that have legislation for protecting firms in this position and change the law here.

Measures to overcome the deterioration in payment behaviour. Payment cycles are lengthening. Pay-when-certified provisions abound. Cash is being held back more and more to be disputed at final account. Although firms need to be more active in exercising their rights under the Construction Act, other payment mechanisms require consideration, such as project bank accounts. The payment process should start when work gets under way – which is usually well before on-site work begins.

Improved Construction (Design and Management) Regulations. The Health and Safety Executive will be amending CDM this year. We must ensure the regime enables us to deliver a more integrated approach to the management of health and safety risks.

A single adjudication procedure. The government may review the Construction Act in 2004. Let's hope it takes on board the industry's wish that adjudication have only one procedure. The New Zealand Construction Contracts Act – out this year – has a statutory procedure that is mandatory. We should also increase the jurisdiction of adjudicators. They should be able to deal with matters such as whether or not there is a dispute or whether a contract is in writing.

More local authorities to apply best value. Let's hope that the new national procurement strategy for local authorities finally alerts councils to their statutory duty to use best value procurement.