Issue 12 | September 2016

Aristotle, bullets, and cars that fly.

Issue 12 | September 2016 Welcome to the Driver Trett Digest

Welcome to this latest, and largest to date, Also in the mix you will find the eternal issue of the Driver Trett Digest. battle for better records, food for thought I was asked recently to speak to a group regarding the future of diversity in the of our client’s senior staff and future lead- construction industry, further technical ex- ers, about the ways in which we have de- pertise pertaining to fire safety and curtain veloped and improved our business. The walling, a summary of the 2015 ICC Dis- 18 Digest was one example I used. We have pute Board rules, and even our homage to a rule that each time we produce an issue, that popular summer topic of Brexit. 4 it needs to be an improvement on the last We welcome some new members one. This can create tensions when early to the Driver Trett team in the Western drafts are rejected. Sometimes the en- Region of Canada and introduce a new hancements required relate to presenta- DIALES technical expert, topped off with tion or graphics and sometimes they relate a couple of new Digest Bytes with a techni- to content. Small gains are made in each cal flavour. issue, but when we look back over the past Finally, we are proud to announce 22 11 issues, the improvements are manifest; our training partnership with the Char- 8 and this serves to inspire the whole team tered Institute of Civil Engineering Sur- to new levels of quality. Ultimately, driving veyors (ICES). Bill Pryke, CEO of ICES, continuous improvement across the busi- is interviewed and shares his views on ness is what makes us stand out from the the benefits of this arrangement to both competition, and our management team members and the wider industry. Driver are committed to continuing this trend. Trett’s commitment to quality and driving Our business has grown considerably up standards was one of the key features in recent years, this is reflected in the wid- that helped us come to an agreement 12 24 er range of services and expertise on offer, with ICES, and we are excited to be work- across the globe. This issue is a testament ing with this strong and forward-thinking CONTENTS to that; our structural ability is showcased institution to deliver excellent training to on the front cover with the spectacular support our industry professionals. ■ The Silver Bullet P2 Goodwood sculpture, David Wileman I hope you enjoy this issue of the Di- ■ Post-It Notes and iPads P4 offers his thoughts on the ‘silver bullet’ gest. If you would like to contribute in the in delay analysis, and guest contributor future or share any feedback, please do ■ Implication and Interpretation P6 Stephen Homer discusses implication and drop me a line. interpretation in contracts. Paul Gogarty ■ Smash and Grab P8 looks at the perennial problem of contra Mark Wheeler ■ Contra Charges P10 charges and Nicola Huxtable does some Chief Operating Officer, Europe and smashing and some grabbing. Americas ■ Brexit and the Definition of an Expert P12 ■ Q&A: Professional Training and Development P13 ■ Goodwood Festival of Speed Sculptures P14 ■ The New 2015 ICC Dispute Board Rules P16 ■ Disruption and Cumulative Impact P18 ■ Records, Records, Records P20 ■ Aristotle and the Acrobats P22 ■ How Safe are you from Fire? P24 ■ Curtain Walling P26

14 ■ Meet the Team in Western Canada P28 Cover image courtesy of Steven Stringer

1 The silver bullet – food for thought In a meeting with a client the other day I susceptible to the fabled silver bullet, but things when it comes to disputes involving DAVID WILEMAN – DIALES EXPERT, SEARCHES FOR THE ELUSIVE ‘SILVER was asked a question which I have been unfortunately there never seems to be one delay. Every now and again I have been BULLET’ AND EXPLAINS THAT YOU’LL asked on many occasions. The question around when you need it most; be it on involved with disputes that quickly turn OFTEN NEED MORE AMMUNITION was: “Is there a silver bullet that will make a dark misty night in an old graveyard or on the interpretation of a contract clause, THAN THIS SINGULAR, MYTHICAL this dispute go away?”. the well-appointed office of a blue chip or can immediately settle due to issues PROJECTILE. Werewolves, and the other party to company. of waiver, or even the parties coming to a dispute, are always regarded as being The ‘Silver Bullet’ is the most elusive of a meeting of the minds on which docu-

THE ELUSIVE SILVER BULLET

The importance of contemporaneous records is not lost drink driving. The defendant’s lawyer, who is now also recognised a silver bullet when he saw one. on our legal partners (lawyers and barristers) who also known for posterity as Citizen ‘N’, was examining docu- Later CCTV images show Citizen ‘N’ eating that know and understand the importance of such contem- ments, relating to the charge his client was facing, when particular silver bullet, or as some may say, ‘wolfing it poraneous evidence. In fact, such a case was reported he was briefly left alone with the contemporaneous down’! For the record, Citizen ‘N’ is now facing up to recently in the Times newspaper¹, where the defend- documents. CCTV cameras caught Citizen ‘N’ tearing two years in jail or a 200,000 rouble (£2,100) fine. As ant’s lawyer recognised the importance of contemporary off a slip of paper confirming the defendant’s positive for his client, it is still unclear whether the prosecution evidence. In this matter there was a silver bullet. breathalyser test from one of the documents and slip- will go ahead. The case involved a defendant who was accused of ping the evidence into his pocket. Citizen ‘N’ certainly ¹ http://www.thetimes.co.uk/tto/news/world/europe/article4739659.ece

2 FIGURE 1 SUMMARY OF COMMON DELAY ANALYSIS METHODS

Critical Path Delay Impact Method of Analysis Analysis Type Determined Determined Requires Logic linked baseline programme. Impacted As-Planned Analysis Cause and Effect Prospectively Prospectively A selection of delay events to be modelled. Logic linked baseline programme. Update programmes or progress information with which to Time Impact Analysis Cause and Effect Contemporaneously Prospectively update the baseline programme. A selection of delay events to be modelled. Logic linked baseline programme. Time Slice Windows Analysis Effect and Cause Contemporaneously Retrospectively Update programmes or progress information with which to update the baseline programme. As-Planned versus As-Built Windows Baseline programme. Effect and Cause Contemporaneously Retrospectively Analysis As-built data. Baseline programme. Longest Path Analysis Effect and Cause Retrospectively Retrospectively As-built programme. Logic linked as-built programme. Collapsed As-Built Analysis Cause and Effect Retrospectively Retrospectively A selection of delay events to be modelled.

ments constitute the contract. client in distress. Disputes involving delay, unfortunately As per Figure 2, a silver bullet can Forensic delay analysis feels more like the or fortunately (depending on your stand become more like a thousand, mini, point), are rarely that simple as there silver bullets. Each one providing a small battle of Waterloo. are generally very few opportunities to amount of information that separates shortcut the work involved. the claim into its constituent parts. In FIGURE 2 - WHAT IS A SILVER BULLET? Forensic delay analysis feels more like this manner claims are prosecuted (and the battle of Waterloo. It requires exten- defended) without the accusations as to The simple truth is that, with respect to delay, disruption, and prolongation disputes, sive, methodical, and meticulous analysis whether the claims are global, thereby the ‘Silver Bullet’ is to: of prospective programmes and as-built allowing each event to be linked to its data, overlaid with painstaking research effect in time and monetary terms. 1. Understand where risk lies in the contract. of the matters of fact, in order to assist The key to the successful pursuance 2. Prepare a robust baseline programme which incorporates risks, key dates, etc. a judge or tribunal to understand the and defence of claims, as always, is 3. Understand your baseline resource and plant requirements. planned intent and how and when the making sure that appropriate, contem- 4. Update your programme on a periodic basis. actual works deviated from that planned poraneous records are consistently 5. Address the time related impacts of variations as they occur. intent. prepared and stored in a readily available 6. Understand growth to resource and plant requirements. In the Driver Digest Issue 11, dated and suitable manner; which with ever 7. Understand your own culpability with respect to delay. March 2016, we discussed Rider 1 to the changing IT and email systems is an art in 8. Prepare your updated analysis in a manner that allows delays of differing October 2002, Society of Construction itself. It is these documents that will be of responsibility to be separated. Law (SCL) Delay and Disruption Protocol. primary importance in the prosecution or 9. Archive official baseline and re-baselined programmes for easy retrieval. This article summarised the pertinent defence of claims. 10. Differentiate between costs due to base work, delays, and disruptive costs and points of Rider 1 and provided the table The moral of the story is that we allocate accordingly. in Figure 1. generally deal with complex disputes, 11. Prepare cost value reconciliation reports to show where money is being lost on a The right hand column of the table and whilst every now and again there periodic basis. sets out, in very brief terms, the minimum may be a ‘silver bullet’ which knocks 12. Keep appropriate, consistent, contemporaneous records. amount of information and data neces- out the opponent to a dispute, for the 13. Retrospectively review periods of delay in respect to time not awarded to sary to prosecute or defend a delay other 99% of cases, the key to successful understand whether the as-built dates are consistent with the forecast analysis. related claim. When it comes to the anal- prosecution or defence of claims is the 14. Prepare delay and disruption event supporting files and collate data at the time it ysis of delay, there are no silver bullets, contemporaneous evidence prepared was prepared. no frying pans to be pulled out of the fire, during the completion of the contract 15. Prepare notices as required by the contract. and no last minute superheroes saving a works. n

3 Post-It Pads and iPads seem to learn from past mistakes. page turning, an endless supply of Post-It information. The identification and MICHAEL FOSTER – OPERATIONAL Now let’s put them together pads, and a junior QS to undertake disclosure of electronic documents in DIRECTOR, DRIVER TRETT, UK EXPLORES THE NECESSARY EVILS (technology and disputes) and what do photocopying to assemble the relevant the legal arena is known as e-disclosure. OF ELECTRONIC DOCUMENTATION we have? You would like to think an easily evidence. Eventually you were on your way This article is not about e-disclosure but is PROTOCOL AND THE ESSENTIALS retrievable bank of evidence, knowledge, with the preparation and presentation more about how and where we begin to OF BEING ABLE TO SOURCE ‘GOOD’ and facts at our finger tips that mean of a case, supported by evidence that assemble a case for a client. RECORDS WHEN BEGINNING TO disputes would be significantly easier to was easily retrievable and appropriately Construction companies should have ASSEMBLE A CASE FOR A CLIENT. prosecute or defend. filed. This was an exhaustive task and document retention policies, because Going back to fifteen years ago, the life sometimes affected by the old but typical some types of records have to be kept Modern technology never ceases to amaze of a dispute always started with a visit to a excuse that files had been put in the skip! for statutory or regulatory purposes me: emails; t’internet (sometimes called client’s archive, project manager’s office, I focus on the words ‘easily retrievable’ and to meet operational needs. the world-wide-web and shortened to or a dedicated office (with no windows) and fast forward to the iPad generation; Permanent retention of documents can www); building information modelling that contained racks of files and boxes. from a construction aspect, I mean those be undesirable because of the shortage (BIM); dashboards; systems applications If you wanted the correspondence files living with information solution packages of space and the need to declutter office products (SAP) systems… the technology or labour allocation sheets, you knew and electronically stored information. accommodation. We also now have a is endless. exactly where to go. The quality of the Should a matter proceed to court need to declutter the company server. Modern construction disputes also photocopying may have been poor, and or other forum such as arbitration, the Untimely destruction of documentation never cease to amaze me either; same some documents missing, but at least the parties are obliged to preserve and can cause difficulties in defending litigious old mistakes repeated time-after-time documents could be easily located and disclose to the opposition the relevant claims, but also in prosecuting claims you by the same people and the human race retrieved. documents to a dispute, including may have against others. (particularly those in construction) never Assembling a case involved lots of both paper documents and electronic Electronically stored information is

4 therefore essential to the success of a certain these systems would have been Fact finding is no different for dispute. Here lies the problem; because It is worth more than fit for running and delivering construction disputes; unlocking the facts the systems implemented to exchange a project that is completed on time and in behind who, what, when, where, how, and retain information might be fit for considering... budget. However, in a dispute situation, and why is fundamental in reaching a executing, running, and delivering a their robustness becomes retrospectively solution for a client. In the modern day, project they are not always fit for running ...good habits need challenged. I’m not going to name specific unlocking this information can be difficult a dispute. to be worked at packages but, when challenged and (and harder than it used to be) because I am certain that the introduction of tested retrospectively, the systems and electronically stored information is not electronic documentation has, in general, whereas bad habits documents they included were not fit for easily retrievable. made life easier as it is far quicker to save disputes. This is also very much about the iPads (and Post-It pads) will be a file electronically than print it, punch come easily. people as well as the systems. around for a while longer. When a it, and then place in the relevant file. Other recent disputes have involved project is becoming problematic, it may Document controllers were very much The foundation to any claim depends working for clients who have not made be beneficial to review and consider central to this process, but a ‘single point on your company’s electronically stored any investment in expensive electronic your document retention policy, in of contact’ (the administration team who information and a detailed examination systems, but preferred to run their particular those aspects that significantly controlled this process) has now been of what your staff had been doing for projects using a directory system that rely on human interface. Consider removed and replaced by staff from the years and months before the dispute anyone can create using a typical the IT departments who never get to various disciplines who are expected to arose. Therefore, the life of any dispute Microsoft Office set up. There is a danger know about disputes. They control vast be self-sufficient; thus the electronic filing unequivocally starts with a retrospective that such filing structure protocols do not swathes of electronic data, yet have no system must endure multiple contributors trawl for evidence. get followed; one member of staff may understanding of the data that needs to each with their own preferences. Fifteen years ago, this was a straight follow a self-invented system on his or her be retained for dispute avoidance. The warning for all companies is that you forward exercise as it involved a trip to an laptop whilst another follows something The clear aim is to ensure any dispute should re-assess your document retention archive. If you could not find something, completely different. A disaster waiting to is solved by way of an early commercial policies on any significant, commercially you went to a person who was called a happen if not properly controlled. settlement and this will be achieved by difficult project where the potential for ‘document controller’. Now, this is not so When disputes arise, the aim is to relying on a robust fact-finding process disputes is high. Ask yourself the question: easy and can make the life of a dispute resolve the problem and find a solution as outlined above. However, should “Can you afford to ignore the possibility much more difficult than it needs to be, quickly, efficiently, and as cost effectively you fail to achieve this and find yourself that you may have an entitlement which resulting in unnecessary fees and costs as possible. This involves establishing proceeding litigation or arbitration, your cannot be proven?”. I’m not saying that you and could even result in prejudicing your what you have been doing on a project company will be prepared for when your should do this on all your projects, but if financial recovery. for the last two to three years. Rudyard lawyer says your electronic information is there is a high-risk that a project is going Recently, I have had several Kipling devised his five ‘W’s (and one ‘H’) crucial and you are under an obligation to to be substantially late and over-budget, appointments on large projects where the rule for a reason and it is often used for preserve and disclose it to the other side. then you must ask the above question. It construction company has invested heavily police investigations and in journalism. Maybe the next generation of is worth considering however, that good in certain electronic systems for cost It is considered to be the basis for construction professionals will solve the habits need to be worked at whereas bad and financial controlling and managing information gathering and problem continual records problem the industry habits come easily. electronically stored information. I am solving. has lived with for so long. n

Introducing our latest DIALES technical expert – Dr Martin Woods

altering, or terminating lease contracts. Scheme (ESOS), the Climate Act DIALES ARE DELIGHTED TO I have been involved in excess of 1,000 requirements, and other energy saving WELCOME DR MARTIN WOODS, dilapidations disputes, acting as expert legislation. An example is the Minimum THE HIGHLY REGARDED AND witness in many of the claims. Energy Performance Standards (MEPS) EXPERIENCED BUILDING SURVEYING, DILAPIDATIONS, AND As a result of the move towards shorter legislation that will prevent many current DUE DILIGENCE EXPERT. term commercial leases over the past buildings from being leased or occupied decade, dilapidations claims are increasing after April 2018. This has already resulted dramatically. The potential dilapidations in numerous disputes between landlords I am delighted to be joining the DIALES liabilities are currently a significant factor and tenants regarding liabilities for technical team to expand its expertise in for consideration as part of the due the required thermal performance building defect identification, dilapidation, diligence in any takeover or merger. improvements. and due diligence disputes. I foresee a future growth in disputes In my 25 years as a building surveyor I have regarding changing European legislation; Kind regards assisted tenants and landlords entering, in terms of the Energy Savings Opportunity Dr. Martin Woods

5 Implication and interpretation - does my contract mean what I think it means?

STEPHEN HOMER – HEAD OF ARBITRATION AND ADJUDICATION, ASHFORDS, UK OUTLINES THE KEY APPLICATIONS OF IMPLICATION AND INTERPRETATION FOR A COURT LOOKING TO RESOLVE INTENT. HE WARNS NOT TO EXPECT THAT A COMMON SENSE INTERPRETATION WILL PREVAIL.

Parties to a contract aim to achieve a ‘reasonable person’, rather than that of sary to imply a term into the contract in implication of terms into contracts has certainty as to the bargain they have the parties themselves. order to make the contract work as the centred around the application of the reached. However, when unanticipated By way of example, in his earlier judg- parties must have intended. However, business efficacy test. The 1889 case of events unfold it is not uncommon for the ment in Investors Compensation Scheme despite some uncertainty following the The Moorcock [1889] 14 PD 64 provided parties to differ in their understanding Ltd v West Bromwich Building Society judgment of Lord Hoffmann, this time in that a term would only be implied into a of the agreement between them, and for [1998] 1 WLR 896, Lord Hoffman stated the Privy Council case of Attorney General contract if it was necessary to give business the courts to be requested to interpret the the court, "is concerned only to discover of Belize v Belize Telecom Ltd [2009] 1 efficacy to the contract. contract as to its true meaning. Sometimes what the instrument means. However, the WLR 1988 (as to which see more below), The officious bystander test, set out in one party will argue the court should meaning is not necessarily or always what the processes of interpretation and impli- Shirlaw v Southern Foundries (1926) Ltd imply a term which has not been expressly the authors or parties to the document cation are, "different processes governed [1939] 2 KB 206, takes into consideration agreed in the contract. would have intended. It is the meaning by different rules" (per Lord Neuberger what the parties would have intended at This article considers recent judicial which the instrument would convey to a in Marks and Spencer plc v BNP Paribas the outset. A term will be implied if it is developments concerning interpretation reasonable person having all the back- [2015] UKSC 72) and it is only once the so obvious that, if an officious bystander and implication, the relationship between ground knowledge which would reason- court has construed the express terms of suggested to the parties that the term the two, and the tests applied by the ably be available to the audience to whom the contract that it will consider whether should be included, "they would testily courts in each case. the instrument is addressed." It is this to imply a term. suppress him with a common 'oh of objective meaning which is conventionally course'". Interpretation of contracts called ’the intention of the parties’. Implied terms As touched on above, recent case law "The professed object of a common In Arnold v Britton [2015] UKSC 35, Then, in what circumstances will the has allowed the Supreme Court to revisit law court in interpreting or construing a Lord Neuberger identified six considera- court imply a term into a contract? Lord these principles and clarify the position on written contract is to discover the mutual tions of general applicability when inter- Neuberger addressed this recently in implication and interpretation, including intention of the parties" (Lord Justice preting a contract which are: Marks & Spencer plc v BNP Paribas Securi- the distinction between the two. Beatson in Globe Motors Inc and others v ties Services Trust Company (Jersey) Ltd & The Privy Council Case, Attorney TRW Lucas Varity Electric Steering Limited l The natural and ordinary meaning of Anor [2015] UKSC 72, essentially refining General of Belize and others v Belize and others [2016] EWCA Civ 396). the clause. the earlier test laid down by the courts so Telecom Ltd [2009] UKPC 10, has been The court's approach, when inter- l Any other relevant provisions of the that the necessary factors, before implying considered to be widely misunderstood preting contracts, is to look at the contract contract. a term into a contract, can now be summa- to mean that a term could or should be as a whole and consider not only the l The overall purpose of the clause and rised as: implied if it is reasonable to do so, and words of the relevant clauses, but also the contract. that implying a term is part of the process the commercial context. However, in l The facts and the circumstances known l The term must be necessary to give of interpretation of a contract. It was noted identifying the intention of the parties, or assumed by the parties at the time business efficacy to the contract or it that the court has: the court will apply an objective test of, that the document was executed. must be so obvious that it goes without "no power to improve upon the instru- "what a reasonable person having all the l Commercial common sense. saying (it will be rare for one to be ment which it is called upon to construe… background knowledge which would have l But disregarding any subjective present without the other). [And] cannot introduce terms to make it been available to the parties, would have evidence of any party's intentions. l The term must be capable of clear fairer or more reasonable. It is concerned understood them to be using the language expression. only to discover what the instrument in the contract to mean" (Lord Hoffman It has been argued that the process of l It must not contradict any express terms means". in Chartbrook Ltd v Persimmon Homes implying a term into a contract is no of the contract. The Privy Council held that, "The ques- Ltd [2009] UKHL 38). The court is inter- more than a facet of interpreting its true tion of implication arises when the instru- ested in establishing the understanding of meaning; as it will sometimes be neces- Traditionally, the courts' approach to ment does not expressly provide for what

6 is to happen when some event occurs." interpreted in a way which enabled the the words which the parties have used Under these circumstances, the usual "The question of new clause to work. This involved either and implying words into the contract, approach is that nothing is to happen, as implying a term, or interpreting it in a both involve determining the scope any alternative result would have been implication arises certain way, which effectively reduced the and meaning of the contract, these are provided for in the instrument. However, prescribed period for service of a pay less different processes governed by different the court considered a scenario in which when the instrument notice before the final date for payment to rules. any reasonable person, who read the does not expressly nil, which the court did. If the court had The recent case law shows that the document in question, would consider not implied this term, the variation would courts continue to take a strict approach that the only meaning consistent with the provide for what have been inconsistent with the original to the circumstances in which they will remainder of the document, taking into terms and could not have operated, which imply a term, and the requirement of account the relevant background, would is to happen when could not have been what the parties necessity has not fallen away, even when a be that something should occur. Only in some event occurs" had intended. Mr Justice Edwards Stuart broader approach is applied. When inter- these circumstances would the court then acknowledged elements of the approach preting contract terms, the key considera- imply the term. The Privy Council consid- of Lord Hoffman in Belize Telecom, but tion continues to be the intention of the ered that it would be appropriate to imply in the light of the qualifications made by parties as described by Lord Hoffman a term because any reasonable person Lord Neuberger in Marks and Spencer. in the Investors Compensation Scheme would consider it necessary. He stated: judgment. When implying terms, the The requirement of necessity was "…the overriding point to be borne in courts will respect the parties' freedom of further confirmed by Mr Justice Edwards mind before implying any term the court contract to set out their own terms and will Stuart in Manor Asset Ltd v Demolition must conclude that the implication of that only interfere when it is necessary, and Services Ltd [2016] EWHC 222 (TCC). In term is necessary in order to give business not because the words used in the written this case, the contract had been varied efficacy to the contract, or to put it another contract result in a bad bargain for one of in a way which was inconsistent with way, it is necessary to imply the term in the parties. When negotiating contracts other provisions of the contract. The order to make the contract work as the it is not safe to assume the law will assist judge reasoned that it must have been parties must have intended." with a common sense interpretation if the the intention of both parties to give effect In Marks and Spencer, the Supreme agreement is coherent and workable as it to the variation, and so the contract was Court stated that whilst interpreting stands. n

7 Smash and grab – the Marmite adjudication?

Love them or hate them, it looks like adju- The payment scheme requires a valid Under the strict payment regime, there NICOLA HUXTABLE – OPERATIONAL dications arising as a result of the strict payment notice to be issued by the paying is no defence for failing to issue a notice, DIRECTOR, DRIVER TRETT, UK payment scheme introduced by the local party followed by the payment of the be it a payment notice or pay less notice. EXPLORES THE ‘NICETIES’ OF SMASH AND GRAB ADJUDICATIONS Democracy, Construction and Regenera- sum due. Where a payment notice is not A bit of research on Google and Wiki- AND REMINDS US THAT THOSE tion Act 2009 are here to stay, at least for issued, the payee can issue a notice in pedia shows the three ingredients needed INITIATING THESE RAIDS NEED TO BE a while. default which will become the sum due for a smash and grab: SURE THEY ARE STRICTLY ADHERING Although contractors, subcontractors, and, unless the paying party is on the ball 1. The element of speed and surprise. TO THEIR CONTRACT’S RULES. and occasionally employers are happy to and issues a valid pay less notice, the full 2. The grabbing of valuables. run them when it works in their benefit, it sum in the default notice will become the 3. Making a quick getaway. is the ultimate ambush adjudication and sum due; whether or not this accurately can result in relationships turning very reflects the value to which the payee 1. Speed and Surprise sour very quickly. would otherwise be entitled [See Fig. 1]. As there is no defence to the failure to

8 FIG. 1 PAYMENT SCHEME REQUIREMENTS

PAYMENT NOTICE Issued PAYMENT NOTICE from Paying Party = SUM DUE

Not issued

Issued PAY LESS NOTICE Issued PAY LESS NOTICE NOTICE IN DEFAULT from Paying Party = SUM DUE from payee

No Pay Less Notice issued by Paying Party NOTICE IN DEFAULT = SUM DUE

issue a notice, it is quick and simple to final account? The payee may have to live and grab adjudication on the basis that his put together the documents needed to with the injustice of a smash and grab payment application became the default start an adjudication and the dispute will adjudicator’s decision for the duration of ...if you want to notice and the sum contained within the have already crystallised. If the paying the project, and then for a further six to adjudicate on a application became the certified sum. party have failed to realise that the rele- nine months afterwards. This all seems fairly straight forward and vant notices have not been issued, the The argument is different on a final technicality, then the employer had no excuse for failing to Notice of Adjudication may well come as account, where the situation cannot be issue the notices. an unwelcome surprise; particularly if it is corrected. In this case the courts are reluc- you have to have However, the adjudicator decided that wrapped with a bow and attached to a box tant to enforce a smash and grab decision followed the the application for payment was not issued of mince pies on Christmas Eve – more (Harding and Paice²). But, what happens strictly in accordance with the contract, common than you would like to think! under NEC where there is no final account contract to the letter. which stated that the application had to mechanism? Under the judgment in ISG, it be issued in hard copy to a named person 2. The Grabbing of Valuables appears that even if all work is complete along with an electronic copy, issued to the What is more clearly valuable on a project and no further payments will be due, it is is no defence, adjudicators will look for a project mail box. In addition, six further than cash? Reputation perhaps? Either possible for an application for payment to way to find that the documents in play fall copies of the application had to be issued way, a smash and grab adjudication is a be submitted many months down the line. foul of the payment mechanism in some to the registered office of the employer. threat to both. It is rare that an adjudica- If the job is finished, this application may way. Regardless of the fact that this process tion is completed within the required 28 well be missed and the opportunity for a A fairly recent example arose when a had never previously been followed and days, but in this case, where there is no smash and grab will arise. This can then be contractor, working under an amended the contractor had always been paid, defence, it is very possible that a party corrected with another interim payment, JCT contract, issued an application for the adjudicator made this decision on who would otherwise not be entitled but theoretically it can go on forever. payment within the correct timescales and the basis that if you want to adjudicate to payment can run away with a large The lack of final account provision in in the same format as all previous applica- on a technicality, then you have to have amount of cash. the NEC is probably something that needs tions, against which he had been paid. followed the contract to the letter. to be corrected; but for now it must be the Relationships deteriorated on site and This seems to be a common approach 3. Making a Quick Getaway sensible thing to sign a full and final settle- he was told that he was not entitled to to smash and grab adjudications. Adjudi- Following the ISG case¹, the courts are ment agreement at the end of the project further payment. The employer failed to cators would much rather make a decision happy to uphold a decision on a smash to avoid these sticky payment issues. issue a payment notice or a withholding on a payment dispute based on the actual and grab provided it is on an interim So, although the smash and grab is a notice against the application, the latest value of the account rather than a techni- application. After all, isn’t that what adju- loaded gun option for some, what do the date for payment came and went and no cality. Be aware, if you are going to throw dication was set up for in the first place? adjudicators themselves think about it? payment was received. a big snowball at the other party, there Pay now, argue later? Although painful Again, it appears that some love them and The contractor’s application did contain cannot be any yellow snow included. n at the time, the financial position can some (possibly most) hate them. Most an element of loss and expense to which always be corrected in the next payment adjudicators are loath to make an unjust he may or may not have been entitled. 1 ISG Construction Ltd v Seevic College [2014] EWHC 4007 cycle. But, what about under JCT where decision purely on the basis that one party In any event, the employer was in breach 2 Matthew Harding (t/a MJ Harding Contractors) v Paice and payments can only flow one way until the failed to issue a valid notice. But, as there and the contractor commenced a smash another [2015] EWCA Civ 1231

9 Contra charges

Contra charges are controversial. The or back charge amounts against monies all familiar with a typical occurrence, PAUL GOGARTY – CONSULTING very mention of contra charges in the otherwise due to the payee, and also where damage occurs to say suspended DIRECTOR, DRIVER TRETT EXPLORES UK, or anywhere, is enough to cause a to provide particulars of the amount ceilings or dry-lined partitions during the THE VARIED METHODOLOGIES quarrel between the parties to a contract; claimed. installation of the mechanical, electrical, AND APPROACHES FOR CONTRA- it has the potential to damage relation- On a typical project, where contracts or public health services because the CHARGING, SET-OFF, COUNTER- ships, especially when deductions are exist between main and subcontractors, latter works are carried out late or out of CLAIM, AND ABATEMENT AND made for insufficient reasons. and where damage is caused by subcon- sequence. THEIR APPLICATION UNDER The raising of a contra charge by the tractor A to subcontractor B’s works on In the past subcontractors on construc- CONSTRUCTION CONTRACTS. paying party under a contract, often a construction project, the rectification tion projects would sometimes come to means that a mistake may have been costs will often be claimed by A against an arrangement whereby they would made by the payee and sometimes it the main contractor. In turn, the main compensate each other for such damage becomes personal. There is likely to have contractor will seek the costs claimed by been a breach of contract or negligence A, with an addition for its own manage- on the part of the payee, giving rise to the ment costs and sometimes delay or Provided the costs contra charge by the paying party. In the disruption related costs, by way of set-off were not too one same way that a payee will be expected against B. This is because there is privity to justify entitlement and the quantum of of contract (where parties to a contract sided, a 'knock for a change, or variation, under a contract; a may sue each other but not third parties) knock' basis worked paying party will be required to evidence between A and B to enable costs to be its entitlement to set-off, contra charge, claimed or paid between them. We are perfectly well.

10 ABATEMENT In contrast to set-off or counterclaim, abatement is a the paying party may make what is known as an ‘appro- c. The reasonable cost to the Employer of engaging means of appropriately reducing a contract price where priate deduction’ to compensate for the non-compliancy. another contractor to remedy the defect; or payment in full may not be justified. Abatement is in For some time, there has been debate and uncertainty d. The particular factual circumstances and/or expert effect an adjustment of the contract price. A pay less as to what constitutes an appropriate deduction in the UK. evidence relating to each defect and/or the proposed notice is not required for an abatement to be effec- In the recent case of Oksana Mul v Hutton Construction remedial works.’’ tive. However, a paying party has the burden of proof Ltd. [2], Akenhead J explained that “appropriate deduc- to clearly set out the basis for making the adjustment to tion” means what is appropriate in all the circumstances. Many paying parties incorporate terms in contracts to the price. For example, the quality of the work may not This appears not to be too helpful on a first reading but enable abatement. Sometimes by pre-agreed amounts, be compliant with the contract requirements (e.g. the the judge went on to explain that an appropriate deduc- in respect of failures by a payee to provide documenta- cladding might have been installed with a paint finish tion can be calculated by reference to one or more of the tion on time, for example operation and maintenance whereas a powder coated finish is specified), or the area following, amongst possibly other factors: manuals, as-built drawings, collateral warranties, or of paving laid may be less than shown on the drawings. ’’a. The Contract rates/priced schedule of works/Specifi- manufacturer’s extended guarantees and the like. The paying party may insist on a powder coated finish or cation; or Whether or not abatement or set-off is implemented, the full extent of paving being installed, or it may reduce b. The cost to the Contractor of remedying the defect a paying party has the burden of proof in respect of enti- the cost price and accept the non-compliant works by (including the sums to be paid to third party sub- tlement or liability as the basis for making deductions way of an abatement to the price. Under JCT contracts contractors engaged by the Contractor); or and the quantum of contra charges or abatement.

informally, or even resolve the issues by a form of bartering. This would avoid the SET-OFF OR COUNTER CLAIM involvement of the main contractor and Set-off is a defence to money owed and can be deployed to 3. The paying party has incurred the costs claimed. all the administration and costs involved. reduce the amount owed or to extinguish it. It is not used where For example, the electrical subcontractor the amount claimed by the paying party is greater than the amount For example, under a JCT subcontract, the paying party may have might provide temporary festoon lighting due to the payee. A counterclaim may be for an amount greater various remedies for breach of contract for which it may counter- for the ceilings subcontractor; who in than the amount due to a payee. It requires that there must be a claim or contra charge the payee in respect of: return might construct a temporary office breach of contract and damages incurred. A set-off or counter- l An indemnity for any breach by the payee which is a breach for the electrical subcontractor or rectify claim is sometimes labelled as contra charging or back charging. under the main contract; or for losses incurred as a result of a damage to ceilings by the electrical The set-off may be made under the contract or at common law, for breach of warranty or representation in respect of the Bribery subcontractor when cutting holes for example, in case of insolvency under statutory provisions. Act; or for losses arising from breach of any third party agree- access in the ceiling on a ’knock for knock’ Provisions are sometimes incorporated in contracts, whereby ment; or against loss and damage due to negligence or breach basis. Provided that the costs were not the paying party may implement a cross set-off between various of duty by the payee; or in respect of costs payable to other too one sided, it worked perfectly well. It contracts between the parties. In other words, a paying party may parties as a result of non-compliant work by the payee; or, for is rare to find this occurring on construc- be entitled to set-off costs incurred due to breach of contract or example, in respect of liability arising from the removal of non- tion sites today. Instead, it is common to negligence on contract A, with monies otherwise due on contract compliant work and reasonable opening-up works. find that a complex system of recording B. This may assist a paying party where it has incurred costs on l An obligation on the payee to pay direct loss and expense alleged breaches of contract or negli- contract A, but there is insufficient outstanding payment due to suffered by the paying party as a consequence of the payee’s gence by various parties is put in place; the payee on that contract. failure to complete its works on time. including the formal notification of alleged In any event, as far as the paying party’s obligations are l Liability for all additional costs incurred by the paying party as a breaches and the imposition of contra concerned, the paying party has the burden of proof. For each result of the payee’s failure to comply with directions. charges through further notifications and every one of the allegations or claims made by the paying l Additional costs and losses incurred by the paying party as from the main contractor to the supply party against the payee, it must prove on the balance of prob- a consequence of works not being in accordance with the chain below. This contractual procedure abilities that: contract. is unhelpful to the smooth relationship 1. The payee failed in its contractual obligations to the paying l Any sum reasonably estimated by the paying party as a result of which is required to complete the works party and in exactly what manner it so failed. interference by the payee of the regular progress of the main by teamwork, it is also costly and time 2. That the cost allegedly incurred by the paying party, as a conse- contract works. consuming to implement. quence of the breach alleged, was incurred as a direct result of l The cost of clearing the site of the payee’s property where the Following notifications of breaches the alleged failure of the payee in the manner described. payee fails to do so. of contract or negligence, a regular monthly account of contra charges is which must be served if a paying party prompting or leaving the payee with no [1] Under provisions compliant with Part 8 of the Local Democracy, Economic Development and Construction Act in then included by the main contractor wishes to deduct sums from amounts alternative but to refer the dispute to an relation to construction contracts entered into on or after 1 in payment notices and pay less notices otherwise due to a payee under a adjudicator for a temporary but interim October 2011 in England and Wales, and 1 November 2011 in Scotland. compliant with the Construction Act contract. On some projects the magni- binding decision on entitlement and [1]. The Act regulates the contents and tude of the set-off or contra charges can quantum, or to arbitrate or litigate for a [2] [2014] EWHC 1797 (TCC) prescribed periods for pay less notices, be significant and strongly disputed, final resolution. n

11 Brexit and the definition of an expert

PAUL TAPLIN – DIALES QUANTUM EXPERT, ADDRESSES THE MEASURE OF AN EXPERT, AND THE UNDENIABLE TRUTH THAT AN EXPERT IS ONLY SO IF SOMEONE ELSE BELIEVES IT.

In June I, like many other millions of people, was glued to my television as the referendum on whether the UK should or should not remain in the European Union unfolded. Even if you don’t like politics, or have strong views on whether to remain or leave, it was undeniably a roller coaster couple of days (that stretched on throughout the summer). Whilst I was enjoying my breakfast, watching Sky News, it became clear that the leave campaign was gaining momentum and would ultimately win. The various presenters offered up many reasons as to why the voters had seem- ingly gone against the majority of politi- cians and other influential individuals. And then it came… a presenter stated that the UK people voted against the delay, technical, engineering or indeed What about qualifications? Are they comfort of knowing these criteria have establishment and ignored the advice a multitude of other specialties. But who important? Can you be a quantity surveying been met. of experts. Woah! Hang on a minute… says so and what are the criteria? expert if you’re not a chartered quantity Notwithstanding any of the above, it ignored the advice of experts… surely not. The Oxford English Dictionary defines surveyor? Some people will say yes, others seems to me that many people can hold That comment was reiterated a number an expert as, ’’a person who is very knowl- will disagree. Again it’s subjective. themselves out as being an expert, but of times throughout the day, as the shock edgeable about or skillful in a particular Lawyers have their own views about whether or not you really are one will of Brexit started to sink in and it got me area’’. This doesn’t seem to be particularly what constitutes an expert and, for them, probably be defined by others. If you are wondering, who are these 'experts' and helpful, as who deems that a person is one of the key requirements is the need appointed and you demonstrate sound why didn’t the voters believe them? very knowledgeable – isn’t that subjective? to have experience of being cross exam- knowledge and expertise in a particular It became apparent that the ‘experts’ My 16-year-old son claims to know ined. This is because a case can be won or field or area, then it’s likely you’ll be in question were the financial analysts everything about everything and, if you lost on the confidence of the expert when appointed again. This will then likely gain and advisors who had told the nation that were to ask him, he’d tell you he was very presenting evidence at a hearing. momentum and in time you will become leaving Europe would result in some sort knowledgeable in all things related to foot- Within DIALES we try to encapsulate an established expert in your own right. of financial meltdown. Over 17 million ball and cars. But, when pressed on simple some of the most common requirements My point being that, rather than the indi- people voted to leave, and I’m pretty sure aspects it becomes clear that he’s neither an that have been expressed to us by lawyers vidual themselves, it’s actually the market they weren’t all financial analysts and expert on football or cars, in fact, it seems to and clients, thus to be a DIALES expert an that will dictate whether you’re an expert advisors. So why would they go against the me he’s not an expert on anything. individual must satisfy the following: or not. advice of an ‘expert’? I’ve heard many people in our industry l Have at least 15 years of relevant expe- Going back to Brexit, it seems to me This got me thinking about whether the say that to be an expert you need to have rience. that the voters decided that the financial voters believed these individuals were in a sufficient amount of ‘grey hair’. Now, I l Have been cross examined or experts were nothing of the sort and that fact ‘experts’ and who defines whether don’t think that’s meant literally but more completed an approved training course their forecast for economic meltdown was someone is an expert or not? of a reference to the fact an expert needs which includes cross examination. based on little more than speculation. This Bringing this back to construction to be experienced. Again, that’s somewhat l Spend at least 50% of your time on was of course a unique event in UK political terms, there are numerous individuals in subjective. Is five years enough? 10 years? expert witness commissions. history, but to me it again shows that it is our industry who claim they are 'experts' 20 years? And indeed, what kind of experi- This means that when lawyers or clients the opinion of others that defines whether, whether that be in respect of quantum, ence was gained in those years? appoint a DIALES expert they have the in fact, you are an expert or not. n

12 Q&A: PROFESSIONAL TRAINING AND DEVELOPMENT

BILL PRYKE – CHIEF EXECUTIVE OFFICER, CHARTERED INSTITUTION OF CIVIL ENGINEERING SURVEYORS (ICES) OUTLINES THEIR PROFESSIONAL TRAINING JOINT VENTURE WITH DRIVER TRETT AND THE BENEFITS OF INDUSTRY SPECIFIC, CONTINUING PROFESSIONAL DEVELOPMENT.

DTD: Bill, you’re entering into a professional development forward. It is training partnership with Driver important to companies, and society as Trett, what is the benefit to the a whole, that we can produce competent members of the Chartered ICES? individuals working on various projects. BP: As far as the institution is concerned there is a willingness for us DTD: So you’re saying that to collaborate with others within the if you’re the chief executive construction industry for the benefit of or commercial director of an the public, contractors, manufacturers, organisation with a number of the construction industry generally, and people who are working in the also for the members themselves; which civil engineering sector, in a is really positive. We understand that it’s surveying capacity, that putting not a one-size-fits-all approach to meet them through your training the needs of a particular organisation courses and membership would or company. By entering into a training add value to that organisation? partnership with Driver Trett it means BP: Absolutely. It is often the case that that we are extremely flexible with what we receive feedback where tenders have we can deliver, and where. During the production of the various industry and are flexible in our approach, been won as a result of people having courses much time has been spent ensuring professionals and companies been through the training. DTD: Why did you choose Driver mapping the membership competencies achieve their development goals. Because ICES is a globally recognised Trett as your joint venture to join ICES against the training; so you professional body and Driver Trett is a partner? can expect our training to fill a gap in DTD: Each of the courses that are globally recognised training provider, BP: It’s fair to say that over the last few terms of increasing knowledge and on offer include some focus on the combination of the two together is years we have been very successful in awareness for individuals who attend your core competencies. Once the perfect partnership to move things elevating the status of civil engineering these courses, which is very important. someone has completed two or forward. surveyors. We have worked very hard more of your courses, how well to achieve that and now we are in a DTD: Do you think that the placed would they be to join the DTD: How does the training position to be able to award Chartered quality of the training that you institution? work, do the individuals come to Engineer, Incorporated Engineer, and are aiming to deliver, and the BP: By having the courses mapped you or do you go to companies? Engineering Technician status. In terms relevant content, is offering directly against our competencies, anyone Where is the training delivered? of training, we want to work with world- individuals good value for who attends will be in a stronger position BP: We’re very flexible. It can be delivered class training partners and we went money? to join our institution. Attending these all around the country, and indeed through a long process to ensure that BP: We believe so. ICES is recognised as particular courses would be of great worldwide as well. we found just that. We have no doubts the leading chartered professional body benefit to an individual, and of course It can be delivered in-house or that the right partnership for us is with for civil engineering surveyors. We have their company, as it means that they have externally, and we’re there to work in Driver Trett. introduced relevant and meaningful people increasing their knowledge with partnership to meet the needs of the competencies for geospatial engineers continuing professional development industry. DTD: If someone were to come and commercial managers, which makes (CPD). along to one of the courses on a difference in the training and allows us There is also a practical side to DTD: If someone decides after offer, what can they expect? to raise standards in the industry. ICES someone increasing their knowledge and reading this that they want to go BP: A lot of work has gone on in the and Driver Trett will support individuals understanding, as achieving competencies on a course and see what it’s all background to ensure that the courses and companies within the civil and attending these courses fill a about, where’s the best place to are relevant to what actually happens engineering industry in developing and particular gap. It’s so important that the get the information? out there on a day-to-day basis. In other demonstrating professional competence. two merge together and provide one BP: The best thing is to email training@ words, the content is really meaningful. We understand the civil engineering solution in terms of moving someone’s cices.org for more information. n

13 Fig. 1 – BMW Sculpture 2016, F1, Le Mans & Mille Miglia cars

Goodwood Festival of Speed Sculptures

The Goodwood Festival of Speed was from the theatrical imagination of the This year’s sculpture was created by HOOMAN BAGHI – DIALES founded by Lord March in 1993, to renowned sculptor Gerry Judah. Gerry and the team for BMW [Fig. 1]. STRUCTURAL ENGINEER, EXPLORES bring motor racing back to the historic Gerry’s sculptures have become Back left, hangs an upside down THE ICONIC SCULPTURES OF Goodwood circuit. Now with more than remarkable and outstanding iconic centre- Brabham BT52 F1 car, designed for the GOODWOOD AND THE ENGINEERING 100,000 visitors per day, it has become a pieces in front of Goodwood House. Brabham team by longtime Brabham AND ARTISTIC HEROES WHO BRING huge outdoor motor show and historic hill Since 2005, a new association with a team designer Gordon Murray for the 1983 THEM TO LIFE EACH YEAR. climb event that draws automotive enthu- of talented designers and engineers has season and powered by the massively siasts to the West Sussex estate from all allowed Gerry’s sculptures to push the powerful BMW M12/13 turbocharged over the world. boundaries, to become more imaginative, engine (producing 800bhp in qualifying Each year at the Festival of Speed, more ambitious, and more spectacular. trim). Front left, and nearly vertical, hangs a different manufacturer sponsors the Three of the designers and engineers who a BMW V12 LMR Le Mans prototype, central display feature in front of Good- formed the nucleus of that team, and have which took overall victory at the 1999 Le wood House. Since the millennium, been the sole members since 2012, are Mans 24 Hours. Finally, hanging peril- these sculptures have been conjured up working with us at Driver Group today. ously over Goodwood House, is a classic

14 Fig. 2 Moving cars for Honda in 2005 Fig. 3 Racetrack for Fig. 4 Twisting arms for Lotus in 2012 are not made up of an external cladding Audi in 2009 applied over an internal structure. They are 98% hollow and would float in a swim- ming pool. Building information modelling (BIM) is used between the geometry generating model and analytical 3D model. A hollow monocoque construction is a complex shape to analyse, but ideally suited to finite element and dynamic analysis. The Fig. 5 Leaning slender Fig. 7 Tall twisting DNA for Mazda in 2015 Fig. 6 Breathtaking bridge developed software allows for the fine arrows for Porsche in over Goodwood House for tuning of varying plate thicknesses to 2013 Mercedes-Benz in 2014 mirror the load distribution in the struc- ture. However, none of this is visible from the outside, where all you see is the smooth, sinuous, double curvature, three- dimensional shapes. The BMW sculpture of three inter- Fig. 8 – Porscheplatz, Stuttgart, Germany Fig. 9 – Audi Chanchun, China Fig. 10 – KIA Sculpture – South Korea locking crescents was constructed in 12 pieces, using 77 tonnes of steel, connected together at two critical and vital junctions. Each crescent is made of three steel plates welded together to form a triangular spike, varying in curve and dimension, with internal baffles and triangular stiffeners. Due to the large size of sculpture and transport restrictions, the design had to allow for fabrication in deliverable pieces BMW 328, 1938 class winner of the Mille China [Fig. 9], and as KIA have done niques into steel monocoque structures, of absolute precise geometry, so that all Miglia, and similar to the car that took fifth outside its plants in Seoul and Gwangju, has led to an unrivalled understanding segments could be welded back together overall and first in class in the 1939 Le South Korea [Fig. 10]. of structure, materials, fabrication, and accurately on site. Existing ground restric- Mans 24 Hours. Our design and engineering team’s construction processes. They have devel- tions in front of Goodwood House meant Credit must also go to metalwork experience of working, firstly with oped software to turn Gerry’s highly a small base grillage was designed to sit specialists, Littlehampton Welding. Each membrane structures for permanent and complex ideas, shapes, and purity of form underneath the sculpture’s narrow base- year they collaborate with Gerry and the temporary applications, and thereafter into elegant structures; where the surface plate, buried just below ground level, to team, to produce these breathtaking developing those structural analysis tech- you see is the structure. The sculptures cater for lateral stability in wind. n central sculptures that provide the support for a collection of iconic and, needless to say, priceless cars, and erect them on the front lawn of Goodwood House. The sculptures are a perfect fusion of art and engineering, constantly pushing the boundaries of physics, engineering, and manufacturing whilst being practical and safe focal points of a major public event. Fig.11 – Smooth sinuous 3D curved arm in Figs. 2-7 above, show previous spec- Fig. 12 – Design of single fabrication Fig. 13 – Fabrication tacular sculptures that have thrilled the ground bearing section of BMW sculpture crowds which flock to what has become Fig. 15 – On-site erection the world’s largest motoring garden party. After the 2013 event, Porsche commis- sioned a similar spectacular sculpture for the front of its corporate headquarters at Porscheplatz, near Stuttgart, Germany [Fig. 8]. Similarly, some have commis- sioned entirely new sculptures, as Audi Fig. 14– On-site erection Fig. 16 – Goodwood did to celebrate 1 million cars made in All images courtesy and permission of Goodwood Estate Mr. Gerry Judah

15 The new 2015 ICC dispute board rules

DAVID BROWN – PARTNER, CLYDE & CO, PARIS TOGETHER WITH A DIRECTOR AT DRIVER TRETT, UK INTRODUCE SOME INTERESTING CHANGES IN THE NEW INTERNATIONAL CHAMBER OF COMMERCE (ICC) DISPUTE BOARD RULES. PUBLISHED IN 2015 AS A FOLLOW UP TO THE ORIGINAL RULES FROM 2004, BOTH SERVED ON A TASK FORCE ASSISTING THE DRAFTING COMMITTEE.

Dispute board (DB) members might be said to be in a unique position. They find themselves in between mediators and conciliators on the one hand, and binding dispute resolvers such as arbitrators on the other. As their name suggests, they are there to decide disputes, but is this all they should do? One of the most inter- esting considerations with respect to any set of DB rules, is the extent to which they empower DBs to assist parties with poten- tial or actual disputes in other ways. In the 2004 edition of the rules, the ICC already put forward ground-breaking provisions for a DB to provide various types of informal assistance to parties with their disagreements. The latest edition retains these provisions, but also contains an entirely new provision at Article 16. This empowers the DB to intervene if it considers there to be potential disagree- ments between the parties. Thus, the DB may raise the matter with the parties and encourage them to avoid a disagreement, help them define the potential disagreement, or suggest a procedure that they might follow, including informal assistance from the DB. This dispute avoidance initiative is also therefore, of being referred as such to a comes to facilitating dispute avoidance. It form of interim or conservatory measures. to be found in a significant modification DB. will be interesting to see how far the next This brings the new ICC rules in line with respect to what the term 'disagree- In our view, what the ICC seems to be editions of the FIDIC forms of contract will with the FIDIC DB rules, which have ment' actually means. Does it encompass doing is recognising the attitude of many follow in the ICC's footsteps! always given the DB such powers under disputes? Yes, according to the definition active DB members, who see their role as Despite the increased level of assis- the procedural rules annexed to the FIDIC of disputes in the first edition of the rules. primarily one of enabling parties to avoid tance that DBs can offer to assist parties in General Conditions of Dispute Adjudica- The new edition provides differently, since formal dispute resolution whether at DB dispute avoidance and prevention should tion Agreement. it defines a 'disagreement' as a differ- level or in a later arbitration. a dispute crystallise, the DB now has the This new power also harmonises its ence between the parties that has not The new ICC rules go much further than power, pursuant to an addition to Article DB rules with the ICC’s Arbitration Rules, yet become a dispute and is not capable, the well-known FIDIC DB rules when it 15, to provide provisional relief in the which permits such measures to be given

16 by its arbitral tribunals. DB or not, this source of potential confu- or nothing unless or until a dispute arises. Now allowing DBs to decide upon sion has now been addressed. One of the most The ICC has decided to retain the prin- provisional relief, should aid the process Any discussion of modifications to ciple of a fee during this period when the of enforceability of their 'conclusions' (see commercial dispute resolution rules notable re-namings DB may not be required to be particularly below), which have been the subject of would be incomplete without a word or active. However, they have renamed it as hot debate in recent times. two about fees. First, a useful modifica- is from the old a management fee instead of a retainer This leads us nicely on to another inter- tion is the addition of a provision making 'determination' fee, representing the other significant esting development in the new rules; that it clear how to proceed in the event that renaming carried out within the new of terminology. The ICC has decided to the parties and DB members have diffi- to the new rules. rename some of the titles given to impor- culty agreeing upon the latter's fees. The They have sought to underline the fact tant elements of the rules. solution provided is sensible, namely that 'conclusion'. that the fee remunerates work carried out One of the most noticeable renamings the ICC International Centre for Alterna- by the DB, particularly steps taken to famil- has been that of the DB’s ‘determina- tive Dispute Resolution (ADR) will resolve iarise itself with the contract documents tion’, under the old rules, to ‘conclusion’ the matter with a decision that binds the and progress of its performance – in other in its new rules. The reason for the DB parties. words, it should not be seen as a standby to now give a ‘conclusion’ as opposed to The new edition of the rules also seeks fee, but one where the DB becomes, and a ‘determination’, is apparently to avoid to address what has been perceived by remains, cognizant of the events, proceed- the mix-up between the DB’s determina- many to be a drawback with standing ings, and progress of the project on which tion and the engineer’s under the FIDIC DBs, namely that DBs appointed at the it is managing dispute prevention, avoid- Conditions of Contract, as FIDIC’s endorse- outset of a project may have little to do ance, and resolution. ment of DBs led to boards becoming more until a dispute arises, but nevertheless The new 2015 ICC Dispute Board Rules common under FIDIC contracts and the receive a relatively substantial 'retainer' have followed an evolutive path, seeking inevitable confusion of determinations as fee for being on stand-by. It is thought to be more in tune with the continually a result. that numerous potential users of DBs have evolving contractual landscape of the Regardless of whether the term ‘conclu- been put off by what they consider to be modern day, international construction sion’ is best suited to the decision of the the prospect of having to pay DBs for little industry. n

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Dialesuncompromised expertise 17 Disruption and cumulative impact wider effect on the circumstances of ciated terms tend to be controversial. mile and earned value analyses, but JOHN MULLEN – DIALES PRINCIPAL, work. Furthermore, they are extremely hard to what of ‘system dynamics modelling’ and PROVIDES AN INTRODUCTION TO THE THREADS OF DISRUPTION AND The direct effects of such events can quantify and the greater the degree of industry studies? CUMULATIVE IMPACT AND OUTLINES usually be isolated and quantified against change, the more difficult quantification A general criticism of all statistical, or THEIR USE IN ASSESSING CONTRACT an individual event. This can usually also is likely to become. Faced with the diffi- computer based, approaches to the valu- CLAIMS. include any direct disruption. However, culty of quantification caused by the extent ation of the effects of change involves what about the indirect effects? For of employer failures, a contractor may the term ‘garbage in garbage out’. This Change, under construction contracts, can example: complain that the employer is seeking to is particularly so in relation to system be in many forms. These include changes l Where access to the route of a linear benefit from the extent of its own failures. dynamics modelling, where the creating to the scope and nature of the physical project, such as a highway or railway, There are a number of potential of the model and the characteristics on work, or to the circumstances under which is divided into a very large number of approaches adopted in the quantifica- which it is based are essential inputs. those works are carried out. Changes to individual parcels that are provided tion of the cumulative impact of change, The respondent to a claim on this basis, scope are usually addressed as a ’varia- endemically late, creating ongoing including the following: or a tribunal being asked to rely upon it, tion’ or ’change’, with the assessment of uncertainty as to when works will actu- l Measured Mile Analyses - However, must be able to understand and check the financial consequences subject of a ally be constructed. these rely on there being a ‘measured the assumptions made. Effectively, does specific provision of the contract. Some l Where there are a great many indi- mile’ against which areas, periods, or the model represent what would have changes in the circumstances of works can vidual instructed changes to the design activities, that are said to have been occurred had the events complained of be part of the definition of ’variation' and of a project, at times creating ongoing affected, can be compared to. Where not happened, such that imputing those financially assessed there (for example in uncertainty as to what works will actu- ‘cumulative impact’ is being asserted events accurately identifies their effects? clause 5.1.2 of the JCT’s Standard Building ally be constructed. it is often the case that unaffected In practice this can be very difficult to test Contract with Quantities 2011). Alterna- Whilst the direct effect of an instance comparators do not exist. and agree. Furthermore, the accuracy of tively, change might be assessed under a of late handover of land, or the issuing l Earned Value Analyses - But, these may the resulting effect will depend on the specific provision dealing with the event of a variation, might be capable of due also suffer from the lack of ’control’ accuracy of the events impacted into the (for example FIDIC Red Book’s clause notice and particulars as required by the areas, periods, or activities that have model. Inevitably, such models are very 2.1, provision for late access to parts of contract; what about the indirect effects been unaffected. complex to create and to impact. Prob- the site). A further alternative might be a on other parts, or the whole of the works, l System Dynamics Modelling - Where lems particularly arise where changes are claim in damages for breach of contract or of lots of such changes? These are likely a computer model of the project is required to what is impacted, for example under some term implied under the appli- to become apparent much later, when created based on the key characteristics because a tribunal determines that some cable local law. Whatever the legal basis harder to quantify and more controversial. that drive its performance, such that the ‘variations’ are not claimable. This will of a claim for change in circumstances, The indirect effect of change on the claimed changes to those characteristics mean re-running the model, perhaps a the challenge for quantity surveyors is to wider scope of construction works is can be input to isolate their effects. number of times. Due re-interrogation, quantify the financial effects, according to often referred to by terms such as ‘ripple’ l Industry studies of the effects of simi- this can be time consuming and expen- the provisions of the contract and the law, and ‘cumulative impact’. Whilst very few larly imposed circumstances on other sive both to do and to allow. The later and to satisfy the burden of proof. people would argue that these do not projects. in a dispute resolution process this is Particularly problematical causes of exist where there is a substantial amount required, the less practicable it becomes. changes in circumstances giving rise to of repeat change, the concepts and asso- Much has been written about measured Industry studies based on previous grounds for a claim include: projects can suffer from similar accusa- l Widespread late provision, by the tions of ‘garbage in garbage out’, the employer, of such information or site difficulties of testing the study for its accu- access as to allow the works to be A general criticism of all statistical or racy, and the practicalities of changing constructed. computer based approaches... involves the the analysis for different events. Broadly, l Variations to scope such as their timing, there are two types: extent, or frequency that give rise to a term ‘garbage in garbage out’. l Studies of the effects of specific causes 18 of lost productivity, such as overtime usually apply the overall percentage of the usual criticisms of such claims. of a Technology and Construction Court working, overmanning, stacking of change in such as total labour hours. 6. That models based on percentage (TCC) trial in London or an International trades, reduced supervision ratios, However, in practice, the effect of varia- of change in scope of work depend Chamber of Commerce (ICC) arbitration increases in work scope, learning tions depends, not only on their overall on the accuracy of both the asserted might. The known outcome of one use of curves, and climatic changes, etc. extent, but also their number and original scope and the scope of change. a computer model, for calculating cumula- l Specific studies of the cumulative timing. A major change to a specifica- These elements of the equation can be tive impact in international arbitration in impact of changes. These tend to be tion or drawing instructed very early in subject to significant challenge and that Europe, was summed up by the claimant limited to increase in the scope of work a project might only affect the contrac- may require re-running of the calcula- contractor’s commercial director with the and its effect on productivity on all tor’s early design and procurement, but tions that rely on them. observation, “a fat lot of good that did us”. work, whether changed or not. have no consequence on construction 7. That such studies tend to be of the It continues to be the case that disrup- outputs at all. On the other hand, a overall change and the effects on a tion quantification is a difficult area. Those defending claims made on the small change to the alignment of a road project as a whole. Thus, such studies Cumulative impact is probably its most basis of such studies raise a number of after it has been started could have a may be inappropriate to assess produc- controversial element. However, disrup- criticisms, including the following: significant disruptive effect if resources tivity loss on part of a project. tion caused by multiple breaches by a 1. The relevance and similarity of the have been relocated to work else- party needs to be quantified. Future previous projects in the study to the where. Those touting models and programmes articles will discuss how this might be current project. 4. The extent of change also involves their for the quantification of cumulative achieved. 2. That such models do not allow inter- numbers. A single large variation, that impact assert that they have been applied This paper is a broad introduction to rogation of the details of the previous results in a significant increase of the successfully, without expressly quoting this subject and will be greatly expanded projects to test their more detailed scope of work to a project, is likely to from legal authorities for their use. Much and detailed in the forthcoming third characteristics and similarity to the have rather less ’ripple’ effect than of the support for the approach is based edition of the book, Evaluating Contract project subject of the claim. dozens of variations of much smaller in the United States, and some observers Claims by R Peter Davison and John 3. That the models consider events but individual size. wonder if their use of juries to try commer- Mullen. In the meantime, John Mullen not their timing. For example, statistics 5. That the resulting quantification may be cial matters lends such approaches a would welcome any feedback on the topic on the effects of change in work scope no more than a global claim, with all better chance of success than the rigours – [email protected] n

19 Records, Records, Records The growth of large volumes of electronic records

DAVID PALENTINE – OPERATIONAL DIRECTOR, DRIVER TRETT, UK EXPLORES THE IMPORTANCE OF GOOD RECORD KEEPING, ALONGSIDE THE INCREASING USE AND BENEFITS OF TECHNOLOGY FOR RECORD STORAGE, RETRIEVAL, AND INTERROGATION IN DISPUTES, ARBITRATION, AND LITIGATION.

On construction projects we are frequently advised to prepare records, records, and more records – often referred to as Max Abrahamson’s mantra¹. These could include records prescribed by the terms and conditions of the contract, for example, early warning notices, applica- tions for payment, or a notice of a party’s intention to refer a dispute to adjudica- tion. They can also include allocation sheets, diaries, programmes, site meas- urements, photographs, as-built draw- sent out by post or circulated internally in common. In the event that any matter is phones, etc. It includes documents that ings, videos, etc. an internal post envelope, with a copy kept referred to litigation or arbitration, you are stored on servers and back-up systems Often we are asked, ’’why do we need in the central filing cabinets. These days, will find that practice directions and proto- and documents that have been deleted. It to prepare records?’’. Typically, records are many records are produced electronically cols have been prepared, and electronic also includes meta-data (the date the file required to notify a party of an event, or by using different types of software pack- disclosure systems have been designed, was created, etc.) and other embedded likely event, that they need to be aware of ages and devices including computers, for managing the disclosure of electronic data which is not typically visible on screen and address. Other records are required tablets, and smart phones. These docu- documents (e-disclosure). or a print out. so that a delay analysis, or a 4D model, can ments are then circulated at the touch of The practice direction requires the be produced (the 3D model overlaid with a button by email or via the internet, with Disclosure of electronic docu- parties to discuss the disclosure of elec- an as-planned and as-built programme) a copy held on a server or in ‘the cloud’. ments tronic documents at an early stage in all and a report prepared to demonstrate Documents that are received as a hard Due to the advent of electronic documents cases which are (or are likely to be) allo- an entitlement to an extension of time. copy are often scanned and saved onto and electronically stored information, cated to the multi-track, i.e. claims over Other records are required to substantiate servers, to minimise the need for physical some courts are now providing practice £25,000. These discussions will include claims for loss and expense, to support a storage cabinets and archives or to create directions for disclosing electronic docu- the need to preserve documents, the valuation of a variation, or an assessment paper free offices. Either way, be it hard ments. This includes Practice Direction Part scope of the search for electronic docu- of a compensation event. Similarly, the copy or electronic, it is not uncommon to 31B – ‘Disclosure of Electronic Documents’ ments, the format in which they will be same records are required to defend a see increasing volumes of different types of the Civil Procedure Rules which are provided to the other side for inspection, claim or to support an alternative assess- and quality of records being produced, used in civil cases (including construction and where required questionnaires will ment. They are also required if these issued, and used on construction projects. disputes) in England and Wales. According be completed. claims, assessments, etc. are disputed and As the volume of records have to clause 5(3) of the practice direction, To assist the parties and their repre- are referred to arbitration or litigation. In increased, so has the need to create ‘Electronic Documents’ are defined as ‘any sentatives in this process various protocols these circumstances the parties will need and store records that can be easily and document held in electronic form’. This have been prepared including the Tech- to provide certain records as part of the quickly accessed, used, shared, and includes email, text messages, voicemail, nology and Construction Solicitors' Asso- disclosure process. searched. As a result of this, the use of word processed documents and data- ciation (TeCSA), the Society of Construc- In the past, records were often prepared document management systems and trial bases, and documents stored on portable tion Law (SCL), and the Technology and by hand, or on typewriters, prior to being management systems are becoming more devices such as memory sticks, mobile Construction Bar Association (TECBAR)

20 e-disclosure protocol which is supported As predictive coding is relatively new, which must be considered for rele- by the judges of the Technology and it was considered by the judge, Master vance and possible disclosure in the WHAT IS A Construction Court (TCC). Matthews, in February 2016, in the case present case is huge. DOCUMENT of Pyrrho Investments Limited and MWB 4. The cost of manually searching these MANAGEMENT Electronic disclosure systems Business Exchange Limited [2016] EWHC documents would be enormous. SYSTEM? These systems and software packages tend 256 (Ch). This was a multi-million pound 5. The cost of using predictive coding soft- In summary, a document management to follow the electronic discovery reference dispute where there were some 17.6 ware would be less expensive. system is an electronic filing cabinet model (EDRM) which is a process of iden- million documents to be considered as 6. The value of the claims in this litigation that allows you to organise and tifying, preserving, collecting, processing, part of the disclosure process. Following is in the tens of millions of pounds and securely store electronic documents reviewing, and producing the electronic a process of electronic de-duplication, the therefore the estimated cost of using and scans of paper documents. These documents. They have been designed to: number was then reduced to some 3.1 the software is proportionate. can be searched by using sophisticated million documents. Nevertheless, these character recognition search engines. l Handle mass volumes of electronic had to be reviewed for relevance and In this judgment, Master Matthews They can be server or cloud based documents and data that have been possible disclosure. After considering the referred to the US Federal Case of Moore and have various functions that allow distributed to various people and cost benefit of using predictive coding soft- v Publicis Groupe, 11 Civ 1279 (ALC) (AJP), the access to certain documents to stored on different types of hardware ware, and the experience gained in other where the magistrate judge in that case be restricted; it monitors who and or equipment in numerous locations. jurisdictions, Master Matthews approved described the use of predictive coding when documents are viewed, tracks l Collect electronic documents without the use of predictive coding in this case. as, “…relatively easy…” whilst noting it edits being made to documents, and causing the meta-data such as the crea- In the judgment, Master Matthews listed may not be appropriate for all cases. controls and regulates when out-of- tion, modified, or last access dates to be ten factors in favour of approving the use Therefore, at this time it will probably be date documents can be deleted. In changed. of predictive coding software in the disclo- used for large cases where the quantity essence these systems and electronic l Strip out duplication and email threads. sure process and none against. Those of data is huge. However, as with all such platforms are designed to assist l Reduce the volume of data that needs factors in favour included: developments, it may not be long before organisations to manage the creation to be reviewed for relevance and privi- this becomes standard, given Master and flow of documents through the lege. 1. There is no evidence to show that the Matthews' view at bullet point two above. provision of a centralised repository. l Provide an efficient and economic way use of predicative coding software of managing disclosure which helps to leads to a less accurate disclosure Record Management Generally achieve the overriding objective set out being given than, say, manual review As the number of electronic records grow, tronic records being lost as a result of in Part 1 of the Civil Procedure Rules, alone or keyword searches and manual the need to manage them in an efficient, lap-tops being stolen or poor, or non- namely to enable the court to deal with review combined. effective, and cost proportionate manner existent, back-up systems. cases justly and at proportionate cost. 2. There will be a greater consistency becomes even more important. Failure l Working out which version of an elec- l Provide predictive coding tools, which in using the computer to apply the to do so can result in parties spending tronic document was actually sent is an automated way of scanning data approach of a senior lawyer towards unnecessary time and money due to following numerous revisions and for clusters of words and phrases and the initial sample (as refined) to the wasted effort in: edits. scoring them for relevance to the issues whole document set, than in using l Gaining access to portals containing in the case (traditionally a very time dozens, perhaps hundreds, of lower- l Locating key evidence buried in endless shared folders where the owner has consuming and expensive exercise that grade fee-earners, each seeking inde- chains of emails. subsequently denied you access, etc. lawyers would do by reviewing one pendently to apply the relevant criteria l Locating evidence that cannot be found document after another until all the in relation to individual documents. due to, for example, staff leaving. Furthermore, poor record manage- records had been reviewed). 3. The number of electronic documents l Filling in gaps in evidence due to elec- ment can, as it has been found in the past, detrimentally weaken your chances to demonstrate an entitlement or defend a claim. WHY USE A TRIAL MANAGEMENT SYSTEM? As the construction industry continues Trial management systems also exist that in the Commercial Court, to effectively result that, apart from reliance, to a limited to see the volume of electronic records allow large volumes of documents to be conduct a paperless trial within the extent, on hardcopy versions of the written increase, and changes to the way we accessed, managed, and used during allotted timetable and with the maximum arguments, and the expert statements, I produce, store, and share records; it is trials. For example, in the case between efficiency, as stated at paragraph 94 of the was able to conduct what, at least so far humbly suggested that the importance Berezovsky v Abramovich [2012] EWHC executive summary of the judgment: as I was concerned, was a paperless trial. for good records, good records, and more 2463 (Comm), a decision was taken to use There can be no doubt that this enabled good records will become even greater. n a cloud based trial management system, “…Perhaps most importantly, the the trial to be concluded within the instead of preparing a trial bundle for the extensive documentation was presented allotted timetable, and with the maximum ¹ " A party to a dispute, particularly if there is an arbitration will learn three lessons (often too late) the importance of litigation that ran to some 280 A4 volumes in a highly organised and easily accessible efficiency…”. records, the importance of records and the importance of of paper. This allowed Mrs Justice Gloster, web-based electronic format, with the records". Max Abrahamson in his book Engineering Law and The ICE Contract.

21 Aristotle and the acrobats The need for a diverse team

ALASDAIR SNADDEN – COUNTRY MANAGER, DRIVER TRETT, SINGAPORE EXPLORES THE NEED FOR DIVERSITY IN CONSTRUCTION AND THE STRENGTH OF A TEAM OVER THAT OF DISPARATE INDIVIDUALS.

Looking at how the construction industry how people work together (as the whole) tries to positively evolve can be fascinating. that ultimately leads to the greatest return. Previously, I explored tangible changes in Notwithstanding this, there is a more methodology, such as use of building literal point not to be overlooked. That is, information modelling (BIM) or more the larger the sum of the parts, the better modular forms of construction (Driver chance the whole has of being even greater. the need for any data interpretation. That view. When asked if they simply replace Trett Digest, Issue 3, June 2013). But what To illustrate numerically, if we had two is, if you expand your reach to include an injured or ill artist with a similar act, the about our future personnel requirements; constituent parts each with a value of one, and consider as many different people response was a firm no! It was explained how should these advance? a total sum (or the whole) equalling three as possible, the net effect is that you that Cirque du Soleil search globally to Clearly, working together in various or more would be good, as it is greater i.e. create the greatest probability of finding find their performers, and that the acts types of team has been, and is always 1 + 1 = 3. But perhaps harder to achieve the required skills, when compared to are so unique and complex that it would going to be, necessary. Be it pre-contract, than getting five parts to equal six. depending on a small group of people. be impossible to readily replace them. post-contract, or handling claims and Logically, it would make sense to Thus, giving the team a better chance to Instead, when the need arises, they look disputes there is an inevitability that, ensure that our team members are of the succeed. to introduce new acts that can be seen without working closely with others, best abilities and are able to interact effec- The arts often prove useful in demon- as exceptional in their own right, even nothing is achieved. tively (i.e. communicate), this can then strating how well diversity works, with though they might not resemble, in the Cooperation is paramount. It is ever translate more easily to provide a team of Cirque du Soleil proving an eclectic slightest, the one replaced. more crucial that we draw from varying even greater value. example of success. A phenomenon, What this illustrates is that if you only backgrounds, demographics, gender, attracting audiences worldwide with spec- choose from a limited pool, you restrict heritage, and race to ensure our industry Finding the greatest sum – getting tacular shows; Cirque du Soleil showcases your chances of finding a special talent advances. the best from a diverse team the individuals’ performances that have for the team. Indeed, looking for a person As I have used numbers to emphasise my propelled it to become a global success. with the specific characteristics of another Guidance from Aristotle – what point about Aristotle, there is temptation Whilst individually spectacular, the combi- could be a misguided and unrewarding makes a good team? to look at empirical data or studies to nation of these great acts, in one show, task. Certainly, had Cirque du Soleil Perhaps one of the most famous, poignant, quantify and justify the effects that diver- certainly surpasses anything the perfor- limited their search to a certain type of act, and often quoted extracts taken from Aris- sity has in creating the best team. mances could do in isolation from each it’s unlikely that its world renowned repu- totle is, “the whole is greater [more] than Although there are an abundance of other. Perhaps illustrating Aristotle’s point tation would be what it is today. You can the sum of its parts”. A lateral interpreta- studies and authorities to demonstrate at its finest. also waste time looking for what you want, tion of this, relating to teams, could be that, the benefits of diversity, there is a funda- When in Singapore, a director of whilst ignoring the talent that is out there. regardless an individual’s capabilities, it is mental and common sense issue beyond Cirque du Soleil gave a television inter-

22 How can we ensure a diverse team is found? Ideally diversity would happen organically. However, in reality it is likely to require a more pro-active and overt approach. It must be remembered that the construction industry has histori- cally faced a lack of diversity. The effects of which are profound. For example, Arbitral Women (an international body who promote and enhance the involve- ment of women in international dispute resolution http://www.arbitralwomen. org/) identified how unconscious biases exist. This can go as far as being neurologically rooted and our actions can prejudice, or fail to consider people, subconsciously. This being the case, it seems only logical to make sure established processes and practices are put in place to over- come this and encourage diversity. For arbitration, Arbitral Women has been at the forefront of a pioneering ‘equal representation in arbitration pledge’. This is being supported by institutions, indi- viduals, governing bodies, and commit- tees working within arbitration to ensure they take clear steps, which make sure women are being considered as arbitra- Is more diversity necessary in the barristers, factual witnesses, and expert than litigation, its reputation is quite the tors. Having such implicit requirements Construction Industry? witnesses; altogether delivering a opposite. For example, parties and their appears to be crucial, if we are to take full Yes, the need to drive diversity forward cacophony of information and opinion representatives are often left frustrated advantage of what diversity will bring to is evident. Notwithstanding initiatives, be to represent the case to either a panel or by the length of time it takes for an award the team. they legislative or not, construction in its singular arbitrator. The arbitrator must to be given, if given at all. In fact, the various guises has been over-flowing with then provide the award. In essence, all recently enacted Arbitration and Concilia- My inspiration for the cause of a lack of diversity throughout its history. these parties need to do their part, as a tion Act 1996, in India, placed a maximum diversity For example, in shipbuilding, a long collective team, to ensure a conclusion is 18-month time limit on the arbitrator to When I first joined Driver Trett in Singa- standing superstition held that no woman found to the dispute in hand. issue an award, to try and overcome this pore, only one of our consultants was should board a vessel under construction. Unfortunately, in many instances, this issue. not a British-white-male (or as the media It was considered bad luck and people process proves unsatisfactory to its parties This illustrates that it is unlikely that like to call them ‘male, stale, and pale’). believed the vessel would be destined to and practitioners. Even though arbitration consistently relying on limited resources, Since then, the team has evolved to sink. In Australia, it was only in the late was supposed to be quicker and cheaper and failing methods, will deliver more deliver a wider age demographic (20s- 1980s that legislation was changed to efficient solutions to these problems (in 60s), improved gender balance, and allow women to enter a mine. fact didn’t Albert Einstein say the defini- a wide range of nationalities including As well as clearly being unjust, limiting tion of insanity was, “doing the same those with an English, Chinese, Indo- the talent pool in such ways seems the ...if you only choose thing over and over again and expecting nesian, Irish, Malaysian, Portuguese, archetypal way of ‘shooting oneself in the from a limited pool, different results”?). Emphasis must be Scottish, Singaporean, and South African foot’, particularly when so many construc- placed on making sure that the net is cast background. Unquestionably, this diverse tion challenges are far from conquered. you restrict your widely in the search for talent and that team, with their various skills and abilities, Take the example of resolving construc- the pool must be as wide as possible, in have grown in to a stronger team, able to tion disputes through arbitration. The chances of finding a order for the best people, with the most deliver and exceed our clients’ expecta- proceedings involve numerous parties, special talent for the appropriate capacity and capabilities, to tions and build a reputation to match. from representatives of the claimant be made available to handle the difficult I have no doubt that diversity will be at and the respondent including lawyers, team. challenges ahead. the heart of our future successes. n 23 How safe are you from fire?

STUART MACDOUGALD-DENTON – DIALES TECHNICAL EXPERT, EXPLORES THE IMPACT OF FIRE PROTECTION AND ESCAPE ON CONSTRUCTION PROJECTS AND THE REGULATIONS IN PLACE TO ENFORCE FIRE SAFETY.

Safety of the building you are in ments i.e. 30mins, 1hr, 90mins, 2hr, etc., premises are safe. Similar fire regulations may mean installing temporary, sacrificial Fire safety is a critical aspect of building is governed by the building regulations. apply in many other countries worldwide. fire doors ahead of the permanent ones, design. Its intention is to protect people Similar regulations exist in most other parts The regulations do not simply require or even temporary compartment walls. first rather than property. In this article I of the world and there are also other regu- that fire is prevented, but that the risks It is important to be aware that the set out a brief reminder of the basics of fire latory standards that apply to the control of from fire are also prevented. In practice, building, once completed, may incorpo- safety in building design and construction. the spread of fires in underground struc- this means that it is not enough to simply rate sprinklers or smoke extraction which Large buildings in single occupancy, tures, processing plant facilities, etc. prevent fire from happening, by mini- allows escape distances to be increased. most buildings with areas in different Fires rarely spread rapidly if the fire mising combustible materials and sources However, no fire engineered solutions usages, and all buildings in multiple occu- separating walls and floors are properly of ignition, but that necessary fire precau- will be available during construction, so pancy, are divided into fire compartments. designed and constructed. However, all tions also have to be in place ‘in the event even more elaborate temporary meas- Each fire compartment is required to be too often I see fire walls and floors that of a fire’. ures might have to be employed, such as separated from the next by walls and floors are incomplete, inadequately constructed, Guidance on the fire precautions that temporary escape staircases. which provide appropriate levels of fire and where both are penetrated by need to be implemented to protect the Also, if at any time the sequence of separation. It follows that staircases, atria, building services without adequate steps project-under-construction ‘in the event of works results in a staircase or other ducts and the like, which pass through being taken to maintain the required level a fire’ are set out in the Health and Safety escape route becoming obstructed, such the fire compartments, also need to be of fire separation. Executive’s Guidance Note 169 (HSE as by scaffolding erected for painting, then enclosed with walls to provide the same GN168). This guidance note is divided either a new temporary staircase or site level of fire protection. Additionally, some Escape during construction into three parts: working area restrictions may have to be rooms within buildings are required to In the UK, the Health and Safety at Work Part 1 Fire risk assessment. put in place. have fire separating walls between them. Act, the Regulatory Reform (Fire Safety) Part 2 Detailed guidance on fire risk The diagrams on P.25 illustrate some Corridors, lobbies, and staircases that form Order Regulations, and the Construction assessment and fire precautions. of the HSE GN168 recommendations part of a fire escape route also need to be (Design and Management) Regulations, Part 3 Legal and enforcement responsi- for maximum escape distances during protected from the spread of fire. all place duties on the main or principal bilities. construction. n In the UK, the level of fire separation contractor to take fire precautions that will Once a project reaches the stage where Further aspects of this topic can required, measured by the time that a ensure the safety of any of his employees, areas are enclosed, maximum escape be explored in our Digest Bytes fire can be contained between compart- third parties, and the public, and that the distances have to be complied with. This series, see P.29 for further details.

24 FIG. 01: SINGLE MEANS OF ESCAPE – 'DEAD END' FIG. 04: TWO 'ALTERNATIVE' (CLOSE TOGETHER) MEANS OF ESCAPE Total distance to No more than 'Dead nearest exit, escape End' allowable 'Dead End' distance stair or compartment distance:- 18m for (18m for 'normal' fire (45m for 'normal' 'normal' fire hazard, risk, 12m for 'high' fire fire hazard, 25m for 12m for 'high' fire risk) is actual travel 'high' fire hazard hazard route, not 'as crow flies' Not less than 45º plus Exit to outside escape stair or Exit to outside 2½º for every metre of separate compartment escape stair 'Dead End' travel or separate Exit to outside escape stair or compartment separate compartment

Maximum Travel Distances Maximum Travel Distances (Table 1, from HSE GN168) Fire Hazard (Table 1, from HSE GN168) Fire Hazard Low Normal High Low Normal High Enclosed Structures: Enclosed Structures: Alternative Escapes 60m 45m 25m Alternative Escapes 60m 45m 25m Dead End 18m 18m 12m Dead End 18m 18m 12m Semi-Open Structures: Semi-Open Structures: Alternative Escapes 200m 100m 60m Alternative Escapes 200m 100m 60m Dead End 25m 18m 12m Dead End 25m 18m 12m

FIG. 02: TWO 'ALTERNATIVE' MEANS OF ESCAPE FIG. 05: ESCAPE ROUTES WHEN PARTITIONS CONSTRUCTED Total distance to 'Dead End' distance is nearest exit, escape actual travel route, not Not less than 45º stair or compartment 'as crow flies' (45m for 'normal' Nearest exit not more fire hazard, 25m for Exit to outside than: 45m for 'normal' 'high' fire hazard escape stair fire hazard 25m for Not less than 45º plus or separate 'high' fire hazard Exit to outside 2½º for every metre of compartment escape stair 'Dead End' travel Exit to outside escape stair or or separate Exit to outside escape stair or separate compartment compartment separate compartment

Maximum Travel Distances Maximum Travel Distances (Table 1, from HSE GN168) Fire Hazard (Table 1, from HSE GN168) Fire Hazard Low Normal High Low Normal High Enclosed Structures: Enclosed Structures: Alternative Escapes 60m 45m 25m Alternative Escapes 60m 45m 25m Dead End 18m 18m 12m Dead End 18m 18m 12m Semi-Open Structures: Semi-Open Structures: Alternative Escapes 200m 100m 60m Alternative Escapes 200m 100m 60m Dead End 25m 18m 12m Dead End 25m 18m 12m

FIG. 03: TWO 'ALTERNATIVE' (CLOSE TOGETHER) MEANS OF ESCAPE FIG. 06: ANOTHER POTENTIAL 'DEAD END' SITUATION Not less than 45º Exit to outside escape plus 2½º for every stair or separate Less than 45º – (not metre of 'Dead compartment these direct distances) End' travel e.g. 12m 'Dead End' needs Exit to outside 45º + 30º = 75º escape stair min. angle or separate 'Dead End' travel compartment Exit to outside distance not less than:- escape stair 18m 'normal' fire risk Exit to outside escape stair or 12m 'high' fire risk separate compartment or separate compartment Maximum Travel Distances (Table 1, from HSE GN168) Fire Hazard Low Normal High Enclosed Structures: Alternative Escapes 60m 45m 25m Dead End 18m 18m 12m Total distance to nearest exit, escape stair or compartment Semi-Open Structures: (45m for 'normal' fire hazard, 25m for 'high' fire hazard - Alternative Escapes 200m 100m 60m e.g. if 'Dead End' is 12m, remaining escape distance not to Dead End 25m 18m 12m exceed 13m in 'high' fire risk buildings

25 Curtain walling Majestic beginnings to a modern minefield

BEN CHAMBERLAIN - DIALES TECHNICAL EXPERT, INVESTIGATES THE IDIOSYNCRASIES LEADING TO FAILURE OF CURTAIN WALLING.

It is important for systems to be correctly fied compounds. This can be seen at the specified and tested to ensure they meet Bauhaus in Dessau [Fig. 2]. the requisite compliance, but without The Secretariat building of the United competent workmanship, however well Nations headquarters, designed by Le the system has performed in testing, Corbusier and Oscar Niemeyer, was potentially serious and extremely costly completed in 1952 and is widely regarded defects could arise. as the first building in New York City to use curtain walling. History However, Lever House, designed by The development of the ‘framed building’ Gordon Bunshaft on Fifth Avenue, New allowed the external walls of buildings York, was completed using stainless steel Fig. 1 The Crystal Palace, London. to become more independent, as the mullion sections later in 1952 and became requirement for them to be load bearing the first 'sealed' glass building. cally manufactured with relative ease. are the key failures of most types of systems. diminished. During the 1970s, more and more Sealing and glass technologies have Thermal forces on the system also The famous iron framed Crystal Palace curtain walling was being manufac- also improved, and are still improving, create problems with the issue of [Fig. 1], originally built in Hyde Park, tured using aluminium extrusions. minimising any issues related to water differential thermal movement and the London, in 1851 for the Great Exhibi- Aluminium can be extruded into nearly or air penetration, thermal gain or move- adequate allowance of movement toler- tion, is seen as the first ‘curtain walled’ any shape required for design and ment. ances. Although rare, this issue can lead to building. Some say that, from a technical aesthetic purposes. Today custom shapes, Curtain walling has been at the forefront potential catastrophic outcomes with glass point of view, there is little in common depending on quantity, can be economi- of architectural design as it allows: and solid cladding panels falling out of the with modern day skyscrapers. I disagree. l The building to maximise its internal system’s framing. The third commonplace Indeed, whilst the technology of the areas. problem that leads to failure is the poor modern aluminium systems to control l Reduction in cost of the load bearing integration of fire protection, omitting water penetration, thermal gain, and structure, by reduction in structural cavity barriers that close the voids at the movement have become more sophisti- depth. slab edge and compartment walls. cated, the concepts are very similar: the l Maximisation of natural light penetra- use of floor to ceiling glass, maximising tion and the subsequent reduction in Water penetration light, no reliance of the façade to support running costs. The system as a whole, if specified, floors, and the use of repetitive large l Reduction in the construction designed, tested, and correctly installed, format façade components. Crystal Palace programme, due to large component should withstand the specified climatic was dismantled and rebuilt in Sydenham, sizes and simultaneous trade deploy- conditions; and in some parts of the world South London. ment. other natural phenomena, like seismic The birth of Modernism, and the forces. The edges of the system are the increased use of reinforced concrete and Main types of failure most vulnerable, where they interface with steel frames in construction, encouraged As the curtain wall is not load bearing and adjacent structures and other trades. This the development of lighter and lighter only requires to support its own weight, its is where the water ingress problems are envelope treatments. The curtain walls key function is to keep the weather out and most likely to materialise. were made from steel mullions and the to protect the occupiers from the external The issue of water and air penetrating plate glass panels were bonded to the Fig. 2 Glass curtain wall in steel mullions of elements. Water penetration and poor air the ‘sealed’ system is heightened by air mullions with asbestos or fibreglass modi- the Bauhaus, Dessau, Germany tightness, through and around the system, pressure differences between the inside

26 and outside of the building; where air to water ingress, it cannot ‘catch’ them and water are pulled from high pressure all. There are many examples of leaking + Pressure - (outside) to low pressure (inside). Orien- curtain walling which had gone through - Suction wa wa - tation then has an effect, as one façade and passed these types of tests. This can wa wa will be subject to higher/positive pres- be due to different reasons, including + sures (pushing) than another, depending climatic circumstances which had not wa on wind direction. Eddys develop as the been displayed in the test, details that had wind moves around the building creating not been tested, or poor installation on small areas of less high pressure. The site. The bespoke system would not have Wind direction - leeside (the sheltered elevation of the had the benefit of continued improve- wa building) creates low/negative pressures ment over time, as the proprietary system wa (suction) [Fig. 3]. would. Building Section Water can be ‘sucked’ through hairline However, the majority of cases that wa gaps when the air pressure differential is concern defects associated with water sufficient. ingress are at the edges of the curtain Fig. 3 Positive and negative pressure created by wind on a building The most common reason for water walling system, where it interfaces with ingress through the system is via the other trades. There can be a breakdown gasket. This defect would generally be in the understanding of which trade is attributed to the curtain wall installer. responsible for what sealing. This infor- Proprietary systems will have been subject mation must be ‘crystal clear’ within the to intensive testing to ensure that water performance specification and subcontract penetration is mitigated, and only work- packages to ensure complete airtightness. manship can be blamed. Even with a good level of understanding, However, if the system is bespoke or this area is still the weak point of the semi-bespoke (using a proprietary system whole system, as the weather membrane but altering the aesthetic appearance) (the EPDM [ethylene propylene diene there are greater chances of failure of monomer (M-class) rubber]) needs to be the system, due to poor specification and bonded to the adjacent material, without

design, as well as workmanship. Bespoke any breaches, and this bond must stand Courtesy of Wintech Engineering Ltd. designs would require rigorous testing to the test of time. Fig . 4 Prop engine at Wintech façade testing facility ensure they meet performance specifica- Water penetration is by far the most tion criteria. A test panel, incorporating common defect exposed, due to the fact on thermal performance. This in turn detailing to limit fire spread. the majority of details proposed, should that it manifests itself as areas that show increases heat loss/gain increases energy The main area of fire protection within be built at a test facility. Fig. 4 shows signs of damp. When one starts investi- use, and therefore increases running costs. curtain walling are the fire cavity barriers. the wind testing facility at ‘Wintech’, a gating the concerns related to the water Air pressure around the buildings, as These are usually located at the slab level, façade testing facility, using an aeroplane ingress, other defects related to entirely with water ingress, plays a major factor or at compartment walls, to close the engine to generate the positive pressure different issues are often found. This is a in the level of air infiltration. High pres- void between the slab or wall edge and against the mock-up façade. Water is then serious concern, as these otherwise unno- sure façades will have increased cold air the curtain walling system. As the void is sprayed into the airstream and a review ticed issues, if not discovered, could mask forcing through the fabric of the façade restrictive, the cavity barrier‘s installation and analysis can be made to determine major problems that may lead to the failing to the inside, where on the leeside the is usually the responsibility of the curtain any ‘weak’ points in the design and how of the system, including the advancing of warm internal air is being sucked to the wall installer. to remedy them. fire spread through the building. outside. Both scenarios can cause major This type of defect is extremely difficult Although this testing may identify deficiencies in specified internal thermal to discover. When they are discovered in most of the design issues which may lead Air tightness requirements. a completed installation, on the whole, Air tightness and water ingress, through If the issues related to air tightness defects of this kind are found when inves- the curtain walling, go hand-in-hand; as if have been addressed then any problems tigating other defects with the installation water can find a route in, then air can find related to water penetration would also or adjacent elements; or ultimately, in The development of even smaller gaps to penetrate. Also, poor be solved. forensic situations after a fire. n the ‘framed building’ air seals impair the pressure equalisation of the system, thereby ‘drawing-in’ more Breach of fire compartmentation Further related content can be allowed the external water. Curtain walling, forming the external explored in our Digest Bytes series This issue has a direct relationship façade, generally does not need to be visit http://www.driver-group. walls of buildings with sustaining compliant U-value figures fire resistant (there are times when it com/global/knowledge/articles/ to become more (thermal insulation). Any air ingress into does, these relate to building adjacencies, and download 'How to minimise the system, and then behind any internal proximity to escape routes, etc.), although defects' or request a PDF copy independent... finishes, will have a negative impact they still require an appropriate level of from [email protected] 27 Meet the team in Western Canada

DRIVER TRETT SET UP THEIR OFFICES IN THE WESTERN REGION OF CANADA AT THE BEGINNING OF 2016. THE DIGEST (DTD) HAD A DISCUSSION WITH ALI FARD (AF) ABOUT THE COMPANY’S PERFORMANCE AND FUTURE PLANS IN THIS REGION.

DTD - Can you tell us a little stage. In most cases, clients come to more about you? us when their negotiation efforts have AF - My name is Ali Fard. I have been been exhausted and they are looking with Driver Trett since the beginning of for experts for the purpose of more 2016 as the director of the operations formal dispute resolution mechanisms, in the Western Region, including British such as arbitration or litigation. In Columbia, Alberta, and Saskatchewan. fact, there is a lot that can be done I have been in the construction before the negotiations formally start. consultancy business for over 20 years, Settlement negotiations would be much primarily providing construction claims more effective where the parties have management and dispute avoidance presented their cases with an acceptable services, in various jurisdictions, level of substantiation and analysis, by including Canada, UK, Middle East and preparing and submitting a consolidated Africa. claim document or defence. I have seen quite a few cases where the parties have DTD - In which Canadian exhausted their negotiations without locations are Driver Trett’s having spent sufficient time and effort offices? Ali Fard on putting together a presentable and AF - We currently have three offices in substantiated case. Certainly, we can Canada. Our office in Toronto was set serve our clients to help them prepare up two years ago by our Vice President and present their cases more effectively, Ron Fernandez, who is in charge of the with the aim to resolve the disputes company operations across the country. earlier and in a more efficient manner. Our Western Region business, i.e. the Vancouver and Calgary offices, were set DTD - How do you see the future up at the beginning of this year when I of your business in the Western joined the company. Region and what is your strategy? DTD - What advantages do you AF - We are excited to be in this market offer to the Western Region at this time. We have found a warm market? welcome from our potential clients, AF - The strengths and advantages of a i.e. law firms, owners, contractors, and consulting firm are usually defined by subcontractors. There is clearly a need its knowledge base and its individuals. for our services that is not currently Driver Trett has a solid track record in being fulfilled. This is exemplified by the construction claims business and Derek Sayers Samuel Bentil the fact that, after just a few months in has been in this market for about 40 the Western Region, we already have a years. With numerous offices, and l Derek Sayers, with over 25 years of over working with our local competitors. number of the region’s key players in our more than 500 experts and claims experience and a solid track record client portfolio who would be willing to professionals, Driver Trett is one of as a contracts and claims manager for DTD - What are the main return for more work. the largest, if not the largest, claims major oil and gas projects, both inside challenges for you in the market? Our strategy is to build up and grow practitioner in the world. and outside of Canada. AF - There are a number of challenges a strong team, and to provide consistent Our team in the Western Region l Samuel Bentil, with extensive experi- and opportunities that I can think of. The and high-quality services, within arm’s consists of a number of first-class ence in the mining industry. one I would most like to highlight is that reach of our clients. consultants with significant local and I believe that the level of local and many of our potential clients are not well international experience in this business. international experience that we bring to aware of the value that our services can DTD - Thank you for your time. Key individuals in the team include: the table gives our clients a major benefit bring to the table during the negotiation AF - Thank you! n

28 BYTES BYTE 1: BYTE 2: IN THE FIRE SAFETY IN DESIGN AND HOW TO MINIMISE DEFECTS CONSTRUCTION NEXT ISSUE The next issue of the Digest, as always, Further to his article Further to his will be covering all industry sectors on P.24 of this Digest, curtain walling and include news and articles from DIALES technical article on P.26 of around the globe. Please keep an eye expert, Stuart this Digest, DIALES on the website www.driver-group.com Macdougald-Denton technical expert, to keep up to date with ad hoc articles, further elaborates on Ben Chamberlain Digest previews, seminars, and training the key design and outlines some events. The Digest will always aim to be construction elements effective approaches topical, and respond to requests and that contribute to fire to minimise related questions from our readers through safety. defects. the articles we publish. If you would http://www.driver- http://www.driver- like to submit a question or an article group.com/global/knowledge/articles/ group.com/global/knowledge/articles/ request to the Digest team please email [email protected] with DIGEST in the email subject line. We are always pleased to receive feedback WHAT'S NEW WITH DRIVER TRETT from our readers and welcome the opportunity to develop the Driver Trett Keep up to date with our latest news and events. For more details of the services and solutions that Driver Trett can deliver, please Digest into a valuable read for those visit our website www.drivertrett.com. Regular news and event updates are made to the website so be sure to visit, or follow involved in the global engineering and us on https://www.linkedin.com/company/driver-trett to keep up to date with our latest seminars and news. construction industry.

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