It's a bold move for a construction law professional to outline in detail how to avoid the use of lawyers in construction projects. Ultimately, we are all working towards the same end goal: a smooth running, cost efficient, successful build. By working in an ethical, honest and fair way, allocating risk, considering nuances in language; and adhering to standard forms of contract wherever possible, the need for legal intervention can be minimised, regardless of the size or complexity of the project.
The work starts at pre-contract stage and there are many factors to consider in order to draft a great contract. Before anything is signed, it is crucial to establish clarity on project roles, responsibilities, and liabilities. Regardless of your role on the project – contractor, employer, project manager – establishing lines of communication at this early stage is also key to effective negotiation when drafting a definitive contract.
First and foremost, the contract must be clear to all parties. Although it may be tempting to add special provisions and clauses to standard forms of contract, it is always better to avoid extraneous detail and fine print that is often not read in its entirety. Without wishing to contradict the title of this article, it's at this stage that investing in a specialist lawyer is usually money well spent. A lawyer experienced in construction contracts will have finely honed skills in understanding what you want to achieve and being able to put this into words.
Put together a good team. Early engagement in the process leads to cooperative working relationships and good communication. This creates a solid foundation which gives all parties confidence in the system and the process.
Keep clear and detailed records. Anything in written form is capable of being a valid record and with widespread use of text messaging, emails and WhatsApp, it's more important than ever to ensure that all communication during a project can be recalled in the event of confusion arising over instructions. Where discussions have been carried out face to face or over the telephone, it's a good idea to confirm what was said in an email so this can be revisited at a later date if required.
It's also imperative to consider how nuances in language can affect the success of a contract. The same words can have a different impact through subtle changes in meaning, eg 'shall' as opposed to 'should.' What sounds straightforward to a native speaker could be misconstrued by a party that speaks a different first language. It is vital that all parties involved in both contract negotiations and any disputes have a willingness to understand the original meaning of the details of the contract.
Navigating the legal requirements involved in construction projects requires foresight, ethical conduct and a commitment to clarity in contracts. By sticking to standard forms wherever possible, allocating risk and responsibilities clearly and sensibly, and fostering open lines of communication, construction professionals can mitigate the risk of legal disputes. However, not all lawyers are created equal, and one highly experienced and well-versed in contract negotiation could well save you a fortune further down the line.
This topic was discussed in our webinar 'How to Stay Away from Lawyers with Paul Darling KC and Martina Hess' in November 2021. Click hereto view the webinar and presentation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
