Imagine for a moment. Suppose some futuristic “Time Team” of archaeologists stumbles upon our civilisation and finds a library of construction law dating from 2009.
As they sift through the debris they uncover what appear to be fragments of a legal system. They liken it to pieces of parchment or broken tablets inscribed by earlier civilisations.
Progress is frustrating.
Here they find an Act called The Unfair Contract Terms Act requiring clauses which exclude or limit liability in standard commercial contracts to satisfy a requirement of reasonableness. However, the guidance given regarding what is reasonable is crude and vague.
Over there, they find an Act called The Housing Grants Construction and Regeneration Act. Somewhere in the middle of it they find a few sections of superior enlightenment. These sections require construction contracts to include certain terms. However, if this is not done, the parties to the contract are not punished but merely required to comply with a scheme intended to introduce fairness. This approach could have been widely applied to reform other kinds of contract, but was not.
As they search on, they find an Act called The Latent Damage Act which extends the normal time for making claims in negligence where defects are hidden. This seems perfectly sensible until other laws are uncovered which say that, in negligence, there is no right of recovery of purely financial loss and the thing itself which a builder builds is treated as purely financial loss. So most claims in negligence against builders for defects are doomed. Rules are undermined and contradicted by other rules.
There is a baffling array of regulations dealing with matters such as procurement and health and safety, some of which are not reconciled to the common law. Case law seems to have developed haphazardly and there are inherent contradictions.
After days of deliberation and confusion the senior archaeologist calls a meeting. Surely he says, there must be a comprehensive unified code of law. By 2009 there must have evolved government with a controlling intelligent mind, capable of orchestrating a unified system.
Faced with this dilemma research goes on until it comes to light that what appear to be detached isolated fragments of law in cases, Acts and regulations are all there is.
A few brave men have produced volumes of their own, seeking to organise and explain the diversity of laws. Impressive as these works are, they are little more than anthologies. They highlight the discrepancies within the law and their authors sometimes disagree.
Why is there this lack of integration? What chaotic factors have caused it? Surely in an advanced civilisation this cannot be inertia or lack of application or discipline? Or can it?
The point is this. We do not need historians of the future to tell us that we require and lack a codified system of construction law.
Certainty and predictability create stability and reduce disputes. Uncertainty creates disillusion and division.
Now is the time, as economic activity generally slows, to implement a disciplined system of codification. It must be “creeping codification”. One suggestion is to develop it in 5 year cycles or stages, aiming to review and expand the code every five years until it becomes comprehensive.
The code should draw together all aspects of construction law, embracing all the different elements of construction contracts. The code should include professional appointments and duties as well as building contracts and common forms of collateral contracts. It should also embrace extra contractual remedies including negligence, nuisance, trespass and occupiers’ liability. It should seek to resolve the tensions between statute and common law and between construction law and other areas of law such as insolvency.
History has codified human development into “ages”. If, with some justification, we consider ourselves in the dark ages of construction law we can, nevertheless, develop a disciplined approach and look forward to an age of enlightenment.
