BuildLaw | March 2018 32
How “final and binding” is an expert determination?
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CONCURRENT DELAY - Parties free to agree
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Bingham's Corner Cont...
Euro Pool's managing director, it says, spent 20 hours organising and co-ordinating the tank repairs. It wants £55 an hour for him, plus 60p a mile for travel. Similarly, his colleagues went hither and thither and it all cost. The defendant says none of these staff management claims get off the ground.
In Euro Pools plc vs Clydeside Steel Fabrications Ltd (January 2003, Scottish Court of Session), the argument run is best explained in the example of the claim for the managing director's time. Clydeside said that there was no suggestion that Euro's managing director had been deflected from other remunerative duties; his salary would be paid by the company whatever work he did, so no extra costs were incurred. In any case, the law of damages explains that the alleged disruption to Euro's business for which the managing director's time is claimed is not a direct result of the alleged defective tanks. If anything, it was a remote loss and not something the supplier could ordinarily have foreseen when it entered into the contract.
Euro said in reply that its claim was based on the disruption to its business as a whole, measured by the cost of staff time. Its claim was for the cost of trouble and inconvenience.
The judge usefully recapped on the law of damages in Scotland. Additional works caused by a breach of contract constitute a loss. The role of the managing director is a little obscure. Has he had to do additional work? The judge could see that someone on a fixed salary will not be paid any more because of the problem. There is no direct cost to the employer as a result of the rectification work. In reality, though, there is a loss. A managing director will normally be expected to devote the whole of their working time in the affairs of their employer – searching for new markets, new products, and so on. So, said the judge, if a supplier commits a breach of contract and in consequence they are required to spend time supervising remedial measures, that time is lost to the other tasks. That, said the judge, is a loss to the company because it has been deprived of the employee's services.
As for such a head of claim being too remote, this too was rejected. Modern commercial conditions suggested it was inconceivable that the consequences would not be known.
As for Sketchley, having lost the trousers, it might now lose its shirt!
finally the FCEC subcontract for civils work. And did we read them? No, of course not. Nor does anyone nowadays read and understand those 86 forms. Construction people just want to build. The forms are what the lawyers pretend to know all about once they poke clauses up your nose. These forms are ammunition to exploit the other bloke in the blame game.
Well now, said I, in the prestigious lecture, let’s make friends with reality: we are stuck with this lunacy. Over these decades the forms have come down the conveyor belt like chocolates to be loaded by Lucy into boxes. The damn conveyor belt has got faster and faster, and she has stuffed them in her shirt, her mouth - and still they keep coming. The boys and girls at JCT, NEC (and more) won’t stop the belt. So now what? Reality: no one reads them; no one likes them; no one understands them; no one, repeat no one, follows the rules in them (lawyers pretend that’s a sin). So? Put up with it. Just run the risk that one day a rule in all this stuff will jump up and bite you ever so hard. Reality tells me that if you are a builder or a subby or architect or engineer or project manager, the thing to do is just do your best.
Wait, I haven’t finished. Hitherto, I have been going on about standard forms as printed and sold (at too high a price). What about the game of amending the forms? It was my turn to wave. In my waving hand is the contract document for works at one of our London railway stations. It is an amended NEC. They are called Z clauses … there are 220 amendments. Beautifully crafted amendments. That barge-pole isn’t long enough.
But wait, I still haven’t finished. All day I read in-house home made forms of contract. The authors have long since left behind amending standard forms in favour of these tykes. Come on, let’s make friends. If you are running a public enterprise, spending public money, but using these forms to coerce, then you can’t whinge about the want of good faith and fair dealing. If you are a private enterprise and using these forms to coerce, then you can’t lament the want of collaboration, co-operation and teamwork. All this beating each other over the head with all these forms hasn’t worked; isn’t working except for people like me. I love all the forms dearly, they create masses of disputes and conflict - and I sit here reading them. That’s the reality.
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