CLInt - Book Reviews - December 2016

Construction Law (2nd edition)

Julian Bailey

Informa Law (Routledge), UK, 2016
ISBN: 978-1-138-80042-7
Hardback, 3 volumes, 2262 pages plus indexes (also available online via i-law.com)
£465

Reviewed by Matthew Bell

 

On BBC Radio 4’s Desert Island Discs, guests are asked to imagine themselves cast away with nothing but a few chosen objects to while away the hours until they are rescued. Over the seven decades the programme has been running, luminaries from Amanpour to Zeffirelli have nominated three books, a piece of music and a luxury item.

Holding in my hands the new edition of Julian Bailey’s Construction Law,such a choice would be simple for me. I would ask to have the three volumes of Bailey’s text as my books,1 the Jerusalem Quartet’s recording of Schubert’s Death and the Maiden as the accompanying soundtrack and, as my luxury, a small mountain of paper and pens with which to make notes.

With these tools at hand, I would have the opportunity of immersing myself in the most comprehensive and coherent treatise on construction law which is currently available to the international construction law community.

Copious superlatives were deployed in describing Bailey’s achievement in producing the first edition;2 doubtless these will continue to be conferred in relation to the second. It is for now sufficient to say that Sir Rupert Jackson’s prediction that ‘[b]y the time this book goes into its second edition, it will have become a standard work of reference for busy practitioners’,3 has been fulfilled, if not exceeded.

So, what is new in the second edition?

The most notable aspect is that Bailey has expanded the text’s coverage to include Hong Kong and Singapore in addition to England and Wales and Australia (whilst continuing to include ‘sprinklings’ of material from around the world).4 In this way, Bailey has not only added to the existing body of commentary on construction law in these jurisdictions, he has also made a significant contribution to the vital yet still-nascent project of comparative analysis in international construction law. For example, in the two chapters (6 and 24) which deal primarily with the Housing Grants, Construction and Regeneration Act 1996-derived schemes for ‘security of payment’ and expedited adjudication, Bailey is now able to compare and contrast the widely-differing approaches in no fewer than ten jurisdictions (UK, Singapore and the Australian states and territories) to achieving a similar policy goal.

Naturally, the construction law world continued to turn in the 55 months that transpired between the first and second editions going to print (respectively, April 2011 and November 2015). Whilst the 26 chapters retain the same headings as in the first editions, changes – often, substantial – to the detailed content of each section reflect Bailey’s discerning eye for identifying and integrating important developments.

Bailey cites, as highlights from these early-2010s reforms:5

• new consumer-focused regulations in the UK and Australia;

• the 2011 edition of the Joint Contracts Tribunal Standard Building Contract; and

• the ‘headline’ UK Supreme Court cases Aspect Contracts (Asbestos) Ltd v Higgins Construction plc6 (adjudication) and Cavendish Square Holdings BV v Makdessi7 (liquidated damages).

To these nominations might be added the Persero series of cases in Singapore on binding but not final dispute board decisions under the FIDIC contracts,8 the Hong Kong government’s 2015 Consultationin relation to security of payment legislation,9 and theAustralian High Court’s reconsideration of liability in negligence for defective building work (Brookfield Multiplex Ltd v Owner’s Corporation 61288).10

Bailey has taken appropriate account of all of these developments, and many more besides, in updating Construction Law. He has also continued to note relevant articles and other materials: his footnotes offer, therefore, a cornucopia of riches to the student or practitioner looking to undertake further research in the area. This is especially pleasing from an academic point of view, given that our construction law community is so prolific in sharing ideas via its journals: such references breathe life into these articles.

All in all, then, Bailey’s three volumes provide an unrivalled time capsule of construction law as it stood at the start of 2016 across its subject jurisdictions.

Does it remain up to date at the end of 2016? The answer is: ‘not entirely’. Inevitably, the text could not anticipate all of the legislative and judicial developments which have occurred this year, let alone seismic shifts such as the ‘Brexit’ vote and its prospective impact upon laws in the UK, EU and beyond. Undeniably, though, the text remains indispensable for its ability to explain the context in which construction law continues to evolve.

Furthermore, from his vantage point in one of the world’s most dynamic regions for construction (as a partner with White & Case in Doha), and having recently completed his tenure as chair of the UK Society of Construction Law, Bailey is uniquely well placed to reflect this continuing evolution in his next edition.

Is there anything to complain about? Only the most minor of gripes as to portability which was mentioned in my review of the first edition11 that weighed four and a half kilograms; the second comes in at nearly six. This reflects not only the increased coverage and detail of the new edition but also that the 400-odd pages of tables and indexes applying to the entire text are reproduced in each of the three volumes. That being said, the author has told me that the idea behind including these pages in each volume is to facilitate reference for readers (who might be using one volume whilst colleagues are using others). In any case, subscribers to Informa’s user-friendly i-law.com online platform can now access the second edition there. Moreover, those of us stuck on desert islands might find superfluous pages useful for fire-lighting and the like.

All in all, then, I would be a very contented construction law academic if I found myself marooned with only seagulls, coconuts and the second edition of Construction Law to keep me company. And, having used parts of the first edition as a teaching resource, I can attest to the text’s value to students for its clarity in presenting the minutiae of topics which is needed for a detailed understanding whilst never losing sight of the bigger picture. I am sure that the same value is found by construction lawyers at all levels of experience in many places around the world.

The second edition of Construction Law stands upon the shoulders of the giant achievement that was the first, and encourages us to look forward to many further editions which will continue to illuminate our fascinating yet complex area of law. The international construction law community is once more in Julian Bailey’s debt.

 

Reviewed by

Matthew Bell

Melbourne Law School, Melbourne

m.bell@unimelb.edu.au

 

Notes

1                              The perceptive readers of CLInt will note that I have taken some licence here, given that it is virtually compulsory on the programme that two of the books be the Bible and the Complete Works of Shakespeare.

2                              See my review of the first edition at (2013) 8(4) CLInt 52.

3                              Julian Bailey, Construction Law (2nd edn, Informa Law, UK, 2016), liii (‘Foreword to 1st Edition’).

4                              Ibid, lv.

5                              Ibid, lv-lvi.

6                              [2015] 1 WLR 2961 [2015], UKSC 38.

7                              [2015] 2 All ER (Comm) 1, [2015] UKSC 67.

8                              Culminating in PT Perusahaan Gas Negara (Persero) TBK v CRW Joint Operation [2015] 4 SLR 364, [2015] SGCA 30 (see, for example, Christopher R Seppälä, ‘The second Persero case before the Singapore Court of Appeal’ (2015) 10(4) CLInt 19).

9                              Via the ‘Proposed Security of Payment Legislation for the Construction Industry Consultation Document’ (June 2015).

10                              (2014) 254 CLR 185 (see, for example, Wayne Jocic, ‘Rise and retreat: Ten years of construction law in Australia’ (2016) 11(3) CLInt 38, 40–41).

11                              See n2 above.

 

Richard Harding QC is a barrister and arbitrator practising from Keating Chambers in London. He is the chairman of the Society of Construction Law (Gulf), and can be contacted at rharding@keatingchambers.com.

 

 

 

Construction Schedule Delays

W Stephen Dale & Robert M D’Onofrio

Thomson Reuters, 2015
ISBN: 9780314644114
816 pages

Reviewed by Douglas S Oles, FCIArb*

 

The 2015 edition of Construction Schedule Delays by Dale and D’Onofrio is a welcome addition to the libraries of construction practitioners, putting it in the top rank of reference texts on the subjects of scheduling and delay. The collaboration between a lawyer and a consultant brings balance to the book and enhances its value to a wide range of users.

The book is a significant expansion of the previous edition, which was already a very useful textbook. One change is to add a significant number of case citations from common law countries outside the United States, making it much more of an international commentary. Moreover, the citations to reported decisions in the US are substantially expanded, which may be the single greatest value of the book to lawyers practicing in the US.

Use of the ‘critical path method’ to evaluate delays on a construction project is widely regarded as a morass in which insufficiently prepared barristers can bog down in the soft ground of vague vocabulary and elusive illustrative exhibits. At a threshold level, however, the underlying issue is often a choice between competing methods of delay analysis. Dale and D’Onofrio address this issue ‘head on’ by comparing the principal approaches (Chapter 6) before then devoting a separate chapter to each of them (Chapters 7–12). Of course, they also offer some general background material to explain ‘CPM’ in general terms (Chapter 2), which can be very helpful to courts or arbitrators who are encountering construction schedule analysis for the first time.

The book would not satisfy technical readers unless it included illustrations of the methods being discussed, and the authors offer more than 120 full-page examples of the various schedule techniques. They also offer several tables of reported decisions that apply those various methods of analysis. The illustrative examples are well chosen and should be of great use to readers. This reviewer might suggest, however, that a future edition could include a listing of the tables so they can be located more quickly if an issue arises on short notice (eg, in the midst of a cross-examination).

The book offers useful discussions of such recurring issues as acceleration (section 3:8), concurrent delays (section 3:9 et seq), damage calculation (Chapter 4), and ‘no damage for delay’ clauses (Chapter 5).

In Chapter 14, the book offers recommendations for clauses that owners might use to control the creation and submission of schedules on a construction project, although some of those suggestions may only make sense on relatively large and complex jobs (eg, requiring a full-time scheduler and imposing detailed restrictions on the content and format of CPM schedule submissions). 

In Chapter 15, the book discusses the Delay and Disruption Protocol issued by the Society of Construction Law in 2002. That protocol provides useful guidance but is currently undergoing a revision, which will presumably be covered by the authors in their next edition.

Chapter 16 comments on a Forensic Schedule Analysis document released by AACE International (known as the Association of Advance of Cost Engineering International before it was reduced to an acronym). The authors discuss its value in selecting an appropriate method for performing delay analysis.

Altogether, the 2015 edition of Construction Schedule Delays is a well-organised, clearly written text that should be of great practical value to the construction industry.

 

Reviewed by

Douglas S Oles, FCIArb

Oles Morrison Rinker & Baker, Seattle

oles@oles.com

 

Note

*     Douglas Oles is a partner in the Seattle firm of Oles Morrison Rinker & Baker. He is also an arbitrator and mediator on the Global Engineering & Construction panel of JAMS.