Newsletter
Information for members
November 2006

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Programme

Unless marked otherwise, the following meetings are free to members and guests. Location maps are now always available on the website.

All are welcome but for those meetings where the organiser’s telephone or email is given, it would be helpful if you could please let them know of your intention to attend.

Thursday, 2nd November
“Jurisdictional Challenges and how to deal with them”
Speaker: John Riches
Chairman: Lindy Patterson
Venue: Dundas & Wilson, 191 West George Street, Glasgow G2
Organiser: Lindy Patterson

Tuesday, 7th November 6.15pm
"Pre-Action Protocol for Arbitrations and Adjudications"
Speaker: John Tackaberry QC
Chairman: Jocelyn Taylor
Venue: Nottingham Gateway Hotel, Nuthall Road, Nottingham NG8
Organiser: Jocelyn Taylor

Tuesday, 7th November 6.15pm
"Complex Construction Contracts: Who needs them?"
Speakers: Michael Craik & Ben Patten
Chairman: Martin Bowdery QC
Venue: National Liberal Club, Whitehall Place, London SW1A

Thursday, 9 November 6.00pm
Generation for Collaboration (g4C) Event
Venue: Lindley Hall, London SW1

Monday, 13th November 6.30pm
Joint SCL/SCS Meeting
“Legal aspects of tenders and public procurement”
Speaker: Finola McCarthy
Chairman: John Lyden
Venue: Rochestown Park Hotel, Rochestown Road, Douglas, Cork
Organiser: John Lyden

Tuesday, 14th November 6.15pm
“Developments from a Judge's perspective”
Speaker: HHJ Frances Kirkham
Chairman: Martin Green
Venue: Lecture Theatre 118, The Northern Terrace, Civic Quarter, Leeds LS1 3HE
Organiser: Jonathan Hawkswell

Tuesday, 21st November 6.00pm
“A little of time at large: proof of a reasonable time to complete in the absence of a completion date”
Speaker: Keith Pickavance
Venue: Hambledon Suite 1, The Rose Bowl, Southampton SO30
Organiser: Marian Harris-Deans

Wednesday, 22nd November 6.00pm
Joint Junior SCL/King's College London event
“The Business of Judging and Judicial Appointments”
Speakers: Her Honour Judge Frances Kirkham and Baroness Usha Prashar
Chairman: Nicholas Gould
Venue: The Great Hall, Strand Campus, King's College London

Wednesday, 22 November 1 for 1.30pm
Joint SCL/Engineering Group of the Geological Society Meeting
“Allocating Ground Risk”
Speakers: Emeritus Professor John Uff (King's College, London); Professor Chris Clayton (University of Southampton); Dr Terry Mellors and Mr Paul Lomas Clarke
Convenor: Darren Page, OtB Engineering Ltd
Venue: The Geological Society, Piccadilly, London W1J
Tea/Coffee served from 1.00pm
Those wishing to attend should register their interest with Darren Page dpage@otbeng.com

Thursday, 23 November 6.00pm
"Lawyers playing doctors and nurses - some thoughts on PFI health projects"
Speakers: Catherine Burke and Michael Craik
Chairman: Nichola Vine
Venue: Martineau Johnson, Colmore Square, Birmingham B4
Organiser: Arul Selvaratnam

Tuesday, 28 November 6.00pm
“CIC Consultants' Contract”
Speaker: Frances Paterson
Venue: The Music Room, Oxford Brookes University, Headington Hill Hall, Headington Hill Campus, Headington, Oxford OX3
Organiser: Richard Wade

Tuesday, 5th December 6.15pm
Joint Tecbar/SCL meeting (Talk to be followed by free drinks)
Speaker: The Hon. Mr Justice Rupert Jackson
Chairman: The Right Honourable Lord Justice May
Venue: National Liberal Club, Whitehall Place, London SW1A\
SCL Chairman Nicholas Gould will welcome the speaker and TecBar to the joint event

January 2007

Tuesday, 23 January 6.15pm
“A guide to piling and the problems that may occur”
Speaker: Martyn Stroud
Venue: Room 118, Northern Terrace, Queens Square Court, Leeds
Organiser: Jonathan Hawkswell

Tuesday, 30 January 6.15pm
“Dispute Resolution Update”
Speakers: Paul Darling QC and Nicholas Gould
Venue (in the Sheffield/Derby/Nottingham region) to be announced
Organiser: Jocelyn Taylor

Two 2007 Social events

Lunch at the Brewery: Friday, 16th February 2007
AGM & Annual Dinner: Wednesday, 16th May 2007
Further details on how to book for these events will be given in due course.

Partnering in the UK Construction Industry

The use of Partnering has received mixed reviews within the Construction Industry.  A panel consisting of professionals in the industry will discuss the concept, application and benefits of Partnering. The event has been organised by SCL member Harendran Abhimandran (Abhi) and will be chaired by SCL Chairman Nicholas Gould. Details as follows:

Monday, 20 November at The Great Hall, Kings College London, Strand, WC2R (nearest tube is Temple ).

6:00pm, registration and refreshments; 6:30pm, panel to start with an introduction by Nicholas Gould; 7:30pm, refreshments and networking.

Cost: £20.00 (incl. VAT). Please note that payment (by cheque only, payable to CIOB) must be received in advance in order to secure your place. Payment cannot be made on the evening.

Cheques should be sent to: Norma Cook, CIOB London, FREEPOST NAT 19945, Morden, SM4 5BR

Tel: 0845 070 6120 or email: ncook@ciob.org.uk

Membership in 2007

We are pleased to announce that there will be no increase in the full member subscription rate for 2007. For the fourth year running, Council has decided to hold the full membership fee at £100.

We are most grateful to the many members who always pay promptly and so we will, as usual, be offering a £5 discount for payments received from full members before the end of January.

The Renewal of Membership invoices will be posted to all full members during December, and all overseas e-members will receive an emailed invitation to renew. The fee for overseas e-members will remain at £15 (with no discount available). All subscriptions become due on 1 January 2007.

As the Society continues to grow, there is an increased need to keep administrative costs to a minimum. Council has therefore decided to introduce a strict timetable for reminding those members who forget to pay their subscriptions. The Constitution of the Society states that all subscription fees should be paid by the end of March and so the 2007 timetable for reminding members will be as follows:

1. Mid December: Invoices will be posted to full members (and emails sent to overseas e-members).
2. Early January: An email will be sent to all unrenewed members reminding of 31 January discount.
3. Late January: A second email reminder to unrenewed members of 31 January discount.
   Payments we receive from 1 February onwards must be paid at the full rate of £100.
4. Mid February: Email to all unrenewed members reminding of the need to pay by 31 March.
5. Mid March: A second email reminder to all unrenewed members of the need to pay by 31 March.
6. 24 March: Final notification that membership will cease if payment is not received by 31 March.
7. 1 April: All unpaid members will be lapsed.

Please note : It is extremely important that the contact details we have for you on the database are up to date so that the reminders go to the correct email address. You can update your own contact details at any time, or email and ask admin to do it for you.

Obituary: Ian Norman Duncan Wallace QC

Ian Duncan Wallace was a splendid mix of the charming, the amusing, the knowledgeable, the stubborn and the cantankerous. And it is true to say (and a very good epitaph it is) that no one who had anything of substance to do with him was likely to forget him.

His early life had a strong middle eastern flavour. His parents met when his mother, Eileen Agnes Wilkin, was evacuated during the 1914-1918 war from Smyrna, where her family had been for some generations. The evacuation was by courtesy of the Royal Navy. Duncan Gardner Wallace, Ian's father, was an officer on the ship.

After the war they returned to Bournabat where Ian was born on the 21 April 1922. They later moved to Alexandria.

It must have been a jolly childhood in many ways. Eileen included among her many qualities fluent Greek, the habit of smoking cigarettes through a very long holder, and the administration of discipline for young Ian. Duncan pursued a law career at the Alexandrian Bar in the Mixed Courts and in the due course at the position with the splendid name of His Britannic Majesty's Crown Advocate. He also retained his links with the Royal Navy holding the rank of Paymaster Commander in the Royal Naval Reserve. He was a typical Scot in many ways - hard working, very well read, very amusing on the rare occasions when he could be tempted to join the social occasions that his wife organised.

How delightful life in Alexandria between the wars must have been for young Ian – but it came to a sudden and sharp end when Ian was sent to Loretto, a school with a reputation for a typically (for the times) spartan and brutal approach to the education of children.

Still, his parents came home to Ballater every other year - he retained his love of a good shoot long in life - and in the intervening years Ian would go out to Alexandria for the summer. It was a considerable contrast and possibly explains the observation of one who knew him from those days that “he looked very dapper in his tweeds on the moors and no doubt equally dapper not in them on the nudist islands of the Mediterranean”.

In appearance, Ian took after his father, short, stocky and fit - keeping fit is one of the recreations he listed in Who's Who, the other being foreign travel - and it was his father's life and example that led him, via the Navy and the rank of Ordinary Seaman in 1940 (aged 18) to Oxford and the Bar, to which the Middle Temple called him in 1948.

He joined the Western Circuit. Whether the two were connected or not, it is the case that the cellar on the Western Circuit was outstanding; and it is also the case that Ian - at least in his later years - was a very knowledgeable drinker of good wine. What is unquestionably the case is that life on the Western Circuit in the forties and fifties would have provided a rich fare of diverse and sometimes arcane cases and an hugely welcoming camaraderie in the bar messes from Winchester to Exeter. Indeed he described the Circuit in later years as his “nursery in the law”.

During these early years he secured a place as devil in the Chambers of E. J. Rimmer Q.C. A devil was a low form of life, somewhere between pupillage and tenancy¹. Devils tended to work on the basis of a percentage of the fee of the member of chambers to whom the devilled work had originally been addressed. (A key issue in such arrangements was time of payment - a good percentage meant waiting until the tenant was paid, which could be quite literally years after the work was done. A lower percentage could sometimes be negotiated in return for payment prior to receipt by the principal. Thus the arrangements could resemble the “pay when paid” provisions that later appeared in the construction industry and were even more unsatisfactory.)

Like his father he was hard-working and, in his early days, an excellent advocate. It was not long before he graduated from devilling simpliciter and developed a good practice. The tenancy duly followed.

The next step on the career ladder came about as a result of an invitation from Rimmer to assist with the editing of the eighth edition of Hudson on Building and Civil Engineering Contracts. This proved to be an archetypical case of duck to water. The work perfectly suited his love of detail and intellectual challenge. It is perhaps a pity that he came relatively late in life to the academic world. He did so much of the work that when the book was published he was credited as joint editor.

The eighth edition was published in 1959 and from then on, for the next 45 years until his death, Hudson in particular and construction law in general occupied a substantial part of his life. The ninth edition came out in 1965, the tenth in 1970 and the eleventh in 1995. Another writer, remembering Ian, truly observed

The scale of this achievement can be measured by the fact that very few major legal textbooks have a sole editor, that unlike many other works Hudson contained hundreds of summaries of cases prepared after close analysis of each decision, and that the eleventh edition was in two volumes and contained 1,706 pages of closely argued text. It is unlikely that such a work will ever be produced by an individual again. Wallace's literary productivity was not restricted to the production of editions of Hudson . During the same period² he published four books on standard forms of construction contracts, and two collections of essays on tort and contract. He also drafted the Singapore Institute of Architects standard form of contract in 1980 and was a regular contributor to the Law Quarterly Review and other learned periodicals.

He took silk in 1973 and advocacy gradually gave way to advisory and academic work, to the latter of which he was particularly suited. And his knowledge of the cases was not only encyclopaedic - it was always at his fingertips. This made him less tolerant than was wise for an advocate when before tribunals with less, often vastly less, knowledge than himself.

He remained cross for a long time about the House of Lords decision in Bickerton³..... - but others involved in the case suggested that he may have broken two golden rules in the art of persuasion - “sit down when you're ahead” and “Disguise the fact that you know more than the tribunal does”. (Indeed as he was the junior in the case, and was following his leader, perhaps the application of the first rule would have meant not getting up in the first place!)

And out of court, he had no qualms about getting into a donnybrook with the powers that be in the construction industry. One of his pet hates was the Joint Contracts Tribunal. This body was (and is) responsible for drafting the Standard Building Forms of Contract in England and Wales. Ian felt strongly about the opacity of the drafting and the failure properly to look after the building owner's interests. Among many attacks, the introduction to the tenth edition of Hudson contains a particularly memorable and enjoyable (for those not on the JCT) polemic - including as it does a raft of highly articulate quotations⁴ from the superior courts on the subject of the Building form.

But where his words might not persuade the House of Lords when delivered orally, they certainly worked when provided to their Lordships by way of an article or a book. Good examples of this are the reversals by the House of Lords of the decisions in NRHA v Crouch⁵ and Trafalgar v General Surety⁶. The highest court in the land had finally taken on board Ian's learning.

Ian was always approachable, never pompous, happy to break the rules if there was a good reason, always supportive of the junior members of chambers and generally a pleasure to know. Not perfect of course - he could pursue a line of argument in conversation at greater length than it deserved or his listeners wanted; but it is a small fault.

Briefly married and amicably divorced, he lived very happily in Holland Park. He remained completely involved with life and work to the end. Indeed when telephoned with congratulations on his 80th birthday, he exploded. “I don't want to be reminded” he complained. “The years are slowing me down. It takes a bit longer each year to get the really complicated cases into my head”.

He was appointed a visiting Scholar at Berkeley University, California in 1977 and continued in that role for many years. Ten years later he added the role of Visiting Professor at the Centre of Construction Law and Management, King's College London. In 2002, he was awarded the President's Medal by the Society of Construction Law for services to construction Law.

Ian died on the 1st of August 2006 after a full, happy, active and successful life of which, one imagines, both his parents would have thoroughly approved. He is survived by his sister.

John A Tackaberry QC : 26 October 2006

_______________________

Notes:
1. A tenuous position, similar to what later what would be called a squatter - do these still exist?
2. 1969 - 1996
3. Bickerton v North West Regional Metropolitan Hospital Board [1970] 1 WLR 607.
4. Nearly all judges in the superior courts in those days had been barristers and they had not lost the ability to excoriate bodies and forms if so moved.
5. Northern Regional Health Authority v Derek Crouch Construction Ltd [1984] AC 644, which was overturned by Beaufort Developments (NI) Ltd. v Gilbert-Ash (NI) Ltd [1999] 1 AC 266.
6. Trafalgar House Construction (Regions) Ltd v General Surety & Guarantee Co. Ltd. [1966] AC 199.

Thanksgiving Service

There will be a Thanksgiving service for the Life and work of Ian Duncan Wallace at 5.45pm on Monday, 13 November 2006 at Temple Church, Temple, London EC4.

Acceptance of the Delay and Disruption Protocol

T he Protocol, now nearly four years old, has been referred to, used or, quite probably, misused in many claims and disputes that have arisen on delay related issues since its publication. What has not appeared to happen, however, is any significant take-up of the Protocol's pro-active dispute avoidance principles or procedures. News has now reached us of support for taking up these principles on the international scene.

T he Romanian equivalent of the UK 's Highways Agency, RNCMNR – Romanian National Company of Motorways and National Roads, manages the implementation of the national road network development plan and the obtaining and expenditure of aid funds related to that plan. RNCMNR has suffered a number of adverse decisions in disputes relating to delay to projects due to changes. RNCMNR apparently considers that the delay events could have been managed better and that the disputes could have been avoided. It is this reason that has encouraged the RNCMNR to direct its consultants and contractors that they must implement the procedures of the Protocol on all existing and new projects. Further, RNCMNR has given quite a bit of thought to the matters and has introduced refinements to the processes set out in the Protocol to ensure that the process is tailored to the nature of work in which RNCMNR is involved and will be executed efficiently.

RAFU, the Ugandan equivalent of the Highways Agency, is also reviewing the RNCMNR directive and the Protocol to ascertain whether any assistance may be gained in RAFU's endeavours to ensure that aid received is expended as effectively as possible.

SCL Junior Members

If you are under 40 or new to the world of construction law, then you can register as a junior member.  The junior committee arranges site visits, conferences with King's College London and social events such as the annual summer Boat Trip on the Thames. A visit to one of Kier's construction sites is planned for later this month – full details to follow shortly.

To register as a Junior Member, log in to the SCL website (www.scl.org.uk) using your username and password. Click on ‘Members' and then and then the 'Junior members' link on the left. You will find an explanation of Junior Membership, and a simple form to register. You do not need to enter your name/details, as these are already recognised by the website after you logged in; you only need to confirm your eligibility by giving either your date of birth, or stating that you are junior in your area of expertise. Nicholas Gould, SCL's Chairman, is responsible for the Junior members and he can be emailed.

Papers

Carole Malinvaud's paper 'Protection of Subcontractors under French Law: An Overview' will be published shortly (it will also be printed and circulated to members).

SCL Hudson Prize 2006

Council of the Society of Construction Law announce the 2006 SCL Hudson Prize competition, and invite entrants from all with an interest in construction law and an idea which they wish to share. The length of essay is a maximum of 5,000 words and the judging panel places emphasis upon originality of thought and approach.

Eligible subjects can be drawn from any part of construction law widely defined, including (but not restricted to) construction and engineering contracts, contract administration, claims, arbitration and dispute resolution, construction litigation, the law of torts, company law, property law, taxation (although this must be related to construction) and any other aspect of law or procedure relevant to the construction industry. First prize is £1,500, second prize is £750. Entrants can also be highly commended or commended. All who are awarded prizes or commendations receive a year's free membership of the Society.

Philip Britton of King's College has enjoyed considerable success in recent years in the competition but has indicated that he is leaving the field open this time round. The Society hopes that a strong field will compete for the right to succeed this distinguished past winner. Other past winners have included members of almost all the disciplines relating to construction law including barristers, solicitors (including a trainee), quantity surveyors, engineers, academics, architects, and several hybrids qualified in more than one discipline.

Further details of the competition, the closing date for which is 5th January 2007, can be obtained from the website. Any queries can be referred to me via Jackie Morris in the first instance. Good luck to all entrants.

Anthony Lavers
Chair of the Judging Panel

How to register on the website as a member

In order to get members' access to the website you must register online as a member. To register, go to the website homepage, click Member Registration and enter your details and a username and password of your own choosing. Your membership number is also asked for (if you don't know it, then admin can tell you). That's all there is to it.

Thereafter, you simply log onto the website using your username and password to get free access to the list of published papers, access your own contact details, or search for the contact details of other SCL members who have agreed for their data to be accessible to other members on the website – the total of those who have given permission is now nearly 1,000 members.

New Members

Finally, we are pleased to welcome the following new members who joined the Society in October:

Sarah Armstrong, London
Olivia Bateman, London
Hannah Bleakley, London
Roy Bradley, Doha, Qatar
Emily Busby, London
Martin Costello, Athgarvan, Eire
Jane Crabtree, London
Mowenna Crichton, Bristol
Terry Damms, Huthwaite, Notts
Glynn Davies, St Helens, Merseyside
Victoria Elsdon, London
Christopher Gough, Bristol
James Harrison, Newcastle upon Tyne
Laura Harry, Notts
Mohammed Fareedul Haq Imadi, Kuwait
Juman Kubba, London
Victoria Lee, London
Eleanor Mercer, Liverpool
Philip Miles, Eltham, Australia
Robin Miller, Leeds
Sahir Mohamed, Abu Dhabi, UAE
Andrew KH Ng, Brisbane, Australia
Joanne Prior, London
Ian Purser, Huntingdon, Cambridgeshire
Christopher Quinn, Croydon
Colin Stewart Robertson, Leeds
Robert Ryall, St Albans, Herts
Meredith Sargent, Vancouver, Canada
Jason Simpfendorfer, Perth, Barbados
Somasundram Sivaganasundram, Singapore
Zac Spyrou, West Sussex
Piers Stansfield, London
Peter Stockill, London
Julia Elizabeth Strettell, London
Puthenpurayil Sugathan, Dubai , UAE
Helen Thedoulou, Bristol
Robbie Turner, Birmingham
Michael Turrini, London
Brad Woodroffe, London

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