Any News from Western Australia on Queen of Hearts?

For better or for worse, I have originated one or two things in the world of construction law in both the UK and Australia. Apart from founding a law firm or two, I was the principal draftsman of the first set of adjudication rules and the first pre-action protocol for construction disputes[3] and coined the terms “pay now, argue later” and Queen of Hearts clause”. I have been making efforts to get pendulum arbitration more widely used to resolve construction disputes.[4]

It was also (and here we get onto the subject matter of this post) me who suggested to John Murray when he was preparing The Murray Report that there should be a statutory benchmark as to which time bars should be enforceable, and which not. It was not exactly suggested as a codification of the existing law, but I pointed out that there are several ways in which a time bar might be challenged, and a single test might be more satisfactory that the existing pot-pourri, referring him to my post ion the topic.

John Murray did pick up that suggestion in his report^[5], referring to what I had suggested^[6]. The substance of the indicative provision was thus:

 (1)   A provision in a Construction Contract which purports to make a right to claim or receive payment, or a right to claim or receive an extension of time, conditional upon the provision of any notice shall be of no effect if and insofar as

(a)   Compliance with the requirements of the provision would not be reasonably possible or would be unreasonably onerous, or

(b)   The requirements of the provision are not reasonably justifiable by any legitimate commercial purpose

(2)   For the purpose, “notice” includes any notice, claim for payment, narrative or calculation as to actual or estimated time or money.[7]

Goodbye, Perry

It is with mixed feelings that I have to report that I lost my 100% success record as a mediator the other day, having failed for the first time to bring the parties to an agreement.

It was always a somewhat improbable-sounding record, redolent more of Perry Mason than real life.  I feel content with

Aggressive Lawyers

In the movies, and in TV series, lawyers are often portrayed as aggressive. As they are, sometimes, in real life.  But does aggression really pay off? Should aggressive lawyers tone it down? Should more mousey lawyers be going for assertiveness training?

There are a few things to unpack here:

• Is there any correlation between aggressive lawyers and successful lawyers?
• Insofar as there is any such correlation, which is the cause and which is the effect, or are they effects of a common cause?
• When does it pay off to be aggressive? And can leopards really change their spots? Or zebras their stripes?

The first thing to do here is to separate aggression from self-confidence and determination. For dispute resolution lawyers, the latter is certainly a desirable quality, and essential for anyone who aspires to any leading role. I can perhaps illustrate this best by recalling an incident from

Pendulum Arbitration on TV Now Up

The TV programme I recently did on pendulum arbitration for BenchTV is now up. The preview is at vimeo, and the full programme is here.

The programme takes the form of an interview by Christopher Chin.  The content is essentally a summary of what is available elesewhere on these pages, but in a form that some might find more easily digested.

 

BenchTV’s

SCL Paper

People have been continuing to say kind things about my book Extra-Contractual Recoveries for Construction and Engineering Work, and it is gratifying to know that practitioners are finding it useful.

 

Somewhat belatedly, I have now sent to the UK Society of Construction Law the written version of the paper which I delivered for them in London in December. It is as follows:

 

 

 

 

 

CLAIMS OUTSIDE THE CONTRACT FROM A COMMON AND A CIVIL LAW PERSPECTIVE

PART ONE: THE COMMON LAW PERSPECTIVE

 

A Paper given to the Society of Construction Law

December 2023

 

 

Robert Fenwick Elliott

 

 

 

 

CLAIMS OUTSIDE THE CONTRACT FROM A COMMON AND A CIVIL LAW PERSPECTIVE

PART ONE: THE COMMON LAW PERSPECTIVE

Robert Fenwick Elliott

Introduction

Before turning to the subject matter of this topic, I would like to consider what we, as practising lawyers, are really doing, in the law? Let us leave front end lawyers aside for a moment, and focus on what is going on when clients come to us with a problem. It seems to me the skill is really twofold. On the one hand, it is all about prediction. Clients come to us and ask: what is

Surprise as a Tactic

There are several parallels between litigation and military conflict, and in the latter, there is often an advantage in surprise. But how often does surprise provide an advantage in litigation of construction disputes?

The answer, in my experience, is “very rarely”. At any rate, until a very late stage, if a case ever comes to trial and counsel needs to do some “gate closing” in cross-examination.

The problem with using surprise as a tactic is not so much with surprise itself, but rather because it tends to interfere with the process of frank engagement about the merits in case between the parties in the early stages of a dispute.

Litigation is never a zero-sum game. The aggregate position of both parties at the end of the process is almost invariably worse than their aggregate position at the beginning of the process. So why do people do it, rather than resolve their disputes amicably at the outset? Sometimes, it is simply a rutting display. More often, the key factor is that one or both parties is mistaken as to its prospects.

My advice is always to consider the possibility that it is you that is mistaken. On a simple analysis, that might be a 50-50 chance? Before you discount that possibility, bear in mind the evidence that a preponderance of men think that they are better looking than average.[1] Obviously, lots of them are wrong about that. An even more striking preponderance of women think that they are more beautiful than average[2], and lots of them are wrong about that too. Apart from this natural tendency to self-aggrandisement, there are factors in the law which tend to

Preparing your Client for a Construction Mediation

Preparing a client, or a witness, for a hearing is one thing. I might come to that later. But in any event, preparing a client for a mediation is something quite different.

The first thing to say is that the dynamic of a mediation is completely different from that of a court case or an arbitration. In a court case or an arbitration, the object of the exercise includes persuading the tribunal of the rightness, and of the reasonableness, of your position. Being unreasonable or difficult goes down badly. Conversely, a mediator is not much if at all concerned with doing justice, but merely in engineering a compromise deal, if that is at all possible. Within some very limits, it pays to be unreasonable. The mediator has no power at all to sanction an unreasonable party. And the more unreasonable the party is, the further the mediator is likely to have to reach in order to find middle ground.

There are limits to this, of course. If your client’s position is too unreasonable, and too inflexible, the mediation will fail. But the key to this is usually not in the initial reasonableness, but in the ultimate flexibility. There is merit in the old adage about mediation: “Give little and give late”.

And so it is usually a bad idea to try to rein in your client for the first three-quarters

Choosing a Mediator

Mediation has a reasonably good track record (overall, perhaps between 70% and 80% in construction disputes) but it could be better. As a lawyer representing parties, you might well think that quite a bit depends on who you choose, or agree, as the mediator. An ineffective mediator might give you a 50% chance of achieving a resolution at mediation, whilst a skilled mediator might have a 90% chance in the same case. So what should you look for?

All went well in London…

… happily, at the Society of Construction Law lecture.  I am told that:

The feedback from the audience was universally positive and it was really pleasing to see a full house, even with the train disruption. A fitting end to the year of lectures.  

Hopefully, at least some of the audience will have been tempted to buy my book. People have been buying it, and finding it useful, in a number of common law jurisdictions. But not nearly enough!

It was good to catch up with some old friends in London, and to see my old firm doing so well.

Back in Australia

Booked out next week

I am very pleased to see that my lecture in London for the Society of Construction Law (well, half-lecture) is fully booked out for next week.

Questions will hopefully be easy. I should be able simply to tell them that it is all in my book Extra-Contractual Recoveries for Construction and Engineering Work, available from London Publishing Partnership.

In any event, it will be good to see