Wading into a sea of risk

Richard Davis Palladian Publishing, 567 pages, £98

There are a few authors around the construction industry who write works of considerable authority. Of those, there are a few who are not only superbly accurate, analytical and sound, but who can write with personality in an easy-to-read style with no axe to grind. Lawyer Richard Davis is one such author. I reviewed the first edition of Construction Insolvency 10 years ago (is it really 10 years?). His second edition brings with it not only Davis’ own learning but also the lessons of a disastrous recession (1991-1994) in construction and commerce as a whole.

This is the book to reach for to know “what gives” when someone in construction goes bust. Or rather, goes into administration, or into receivership, or a voluntary arrangement, or liquidation. And it’s not just for lawyers; no, it is for builders who want to know what gives when a subby goes bust, or rather when an employer or supplier or even the architect goes bust.

There is, though, much more than what to do when insolvency occurs. There is considerable advice on what to do to avoid the worst consequences of insolvency. Davis explains the causes, explores avenues to avoid the disasters. I adore his brutal but true statement: “To procure construction work is to wade into a sea of risk”. It must also be right to say that to do construction work is to wade into that same sea. Any builder or architect, engineer, QS reading this review will have experience of someone on a site going bust. But I bet you will not know how best to handle it, nor how easy it was to avoid the tide washing wreckage on your beach. Davis’ book is a must for professional contractors and for the consultants and lawyers.

Construction Adjudication

Robert Stevenson and Peter Chapman Jordan Publishers, 244 pages, £65

Solicitor Robert Stevenson and barrister Peter Chapman timed this book rather better than some others who have explained this brand new business of “construction adjudication”. It was completed last October. By then, the number of adjudications had begun to take off. Both authors had actually “done” some adjudication work. The forward by Roger Sainsbury, written two months before, was accurate when he said the number of adjudications taking place was relatively small. By October, the gun had gone off. And now, by March 2000, there have been more than 1000 appointments of referees.

In truth, I rather regret that these two reliable and thorough lawyers had not waited a few more months. Even since October, we have learned, by more and more High Court pronouncements, what this new process is really about. Their clause-by-clause analysis of the act could then have been linked to decided cases. Fortunately, Stevenson and Chapman have highlighted potential difficulties, but you should check whether decided cases have provided an answer.

I notice that they have fallen into error about not including Northern Ireland in the scope of the act. I am writing this from Belfast and can tell you that it has been well and truly up and running here from 1 June 1999. An interesting chapter widens the book to international adjudication dispute boards, of which Chapman has particular experience. He explains how adjudication is not at all new. There has been a significant upsurge of dispute review boards worldwide. The international standard form FIDIC includes these provisions as a norm.

The authors are clearly enthusiastic about the new adjudication process and their analysis is helpful to the contractors who now have to, yes have to, regard the new referee as an everyday feature. Buy the book; I recommend it.

Construction Litigation Practice

Michael Reynolds CLT, 280 pages, £48

Frequently on these pages you will have seen references to the Official Referees Court and, as it is now known, the Technology and Construction Court. This book by solicitor Michael Reynolds is first a nuts-and-bolts guide to managing litigation in that court. The court is the litigation forum for issues or questions that are technically complex, and many a solicitor new to, or only occasionally involved in, construction will benefit enormously from this hand-holding. The book will also interest those who offer expert witness service, since the court often needs opinion evidence. And it will be useful on the law library shelf, since practice and procedure are explained.

The book gives Reynolds the chance to fret a little about the direction being taken by the English legal system. He reminds us that the radical changes in civil litigation introduced last April were 180 years overdue. But one senses from him that the system focuses not on delivery of legal rights but on shooing disputants away from rights by asking, or coaxing, the parties not to litigate at all. I like his line: “Settlements can be fair and prudent arrangements, but can also be squalid scenes of bullying acted out in the law’s back alleys.”

The book may even be that the experienced lawyer will lift if off the shelf … just to check the right procedure is being followed.