On 25th November, Paul Darling QC joined Barton Legal for a webinar on ‘How to stay away from lawyers’. In this webinar, Paul and Bill were joined by Martina Hess from CES Consulting Engineers. Watch the video recording below.
The team looked at how to minimise the risk of needing legal advice and disputes. They examined a range of topics, from risk in construction contracts to good faith and projects relationships, concluding with what to do if you cannot avoid a dispute.
Watch The Recording:
Martina started the discussion by emphasising the importance of being honest and fair throughout legal proceedings. We are all human and we all want a good outcome but the best way to do that is to ensure we are being fair.
It is important to bear in mind that parties should be working together and not fighting. Collaboration is essential to allow the project to come to fruition.
Contracts, Risk and Common Mistakes
The importance of using a standard form of contract was emphasised by Martina. The key here is clarity. Everyone should have a clear understanding of the terms of the contract before a project starts.
Often a party will not even read the whole contract. Therefore, ensuring everyone understands what they are liable for is essential. Paul advises that when you get a contract the first thing to do is ‘Read it’. You must understand the terms of the contract you are signing. Read it and make sure you understand it.
Risk allocation is another area that needs to be very clear. Martina advises that it should be clear in the contract who takes on project risks. Whether it be the products used, design faults, or anything else.
Contractors are often blamed for design faults but in many jurisdictions, this is the employer’s problem. However, Paul says that there can sometimes be confusion with regard to contracts as the risk could be seen to be transferred from one to another. To avoid this, do not amend the original contract.
Another element that can cause confusion is working across multiple countries and languages. Interpreting different meanings of words and the use of language can be difficult in certain situations. Projects which involve parties from different countries are usually understood as allowing the words of the contract to take precedence over the applicable law to the contract. This allows parties to progress the project with greater ease.
However, when using interpreters, mistranslating things can be a source of problems. Mistakes are common but you need to have the willingness to understand, and language does not have to be a barrier. It can be used as a means for coming to a collective conclusion.
Relationships and Good Faith
Good Faith as an underlying principle with relation to language is necessary for resolving disputes and completing projects.
Good behaviour is something Martina believes we should all demonstrate. Shouting on site is something no one wants. People need to respect each other. Everyone wants to do their job and has their own home lives that they want to be happy in. Taking anger and work problems home is something we should do our best to avoid. Paul agrees and says that we all need a sense of proportion. There will always be a tipping point, but you don’t want to find it.
People in construction should be able to rely on each other and support each other if we are doing our jobs correctly. Accurate records need to be in place and timescales are correct. If everyone gets on and acts fairly and ethically, a project should run in a smooth, non-contentious manner. Keeping records is useful, particularly if lawyers are needed. Paul agrees and believes there to be three key aspects to a well-run construction project:
Relationships are a fairly new concept in this environment. But now it is clear the part relationships play and how critical they are. Good behaviour equates to good business.
If You Must Use A Lawyer
Firstly, the early use of a lawyer can reduce a problem long term. Secondly, if people have confidence in the process and system then they will use it positively and effectively. Otherwise, people use it as a war of attrition which no one wants. A path for resolution is what lawyers want. The key with lawyers is managing the process well. Paul notes a lawyer he met a few years ago said lawyers in the ‘old days’, would behave like doctors and you would go to them with a problem. Whereas, nowadays, lawyers are being used in a more pre-emptive way to try and stop a problem from becoming out of control which can be very positive.
Bill contributes that there are bad lawyers out there doing bad jobs. You need to find a good lawyer who understands their job and their role to get the best outcome for you.
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