Advocate Simon Franckel is a Partner and Head of Trusts and Commercial Litigation with BakerPlatt, a specialised litigation law firm based in Jersey.

Advocate Franckel will be a regular contributor to this legal section of the JeCC web site - jerseyconstruction.org - writing on pertinent legal issues of interest to all members of the local construction industry.

Before I became an Advocate in Jersey I worked as a solicitor in England. Some time ago I acted for a company which owned a large chain of hotels and which had its head office in Leeds where I worked. As a result, I became involved in construction disputes. In truth, at the time I did not enjoy the prospect of doing so.  It seemed to me that the essential elements that I needed to win the case for the client were in direct contrast to the aims of all those involved in the construction project - as a litigator I rely on the evidence that I can put before the court. The best form of evidence is a full written record of issues recorded in a timely fashion. I also wish to ensure that the client does not give any indication or take any step that might be taken as a waiver or acceptance of another’s breach of contract. The goals of the parties to a construction project (namely completing the project with as few mishaps and as little delay as possible) left me feeling as if I was trying to teach a fish how to ride a bicycle, to steal a metaphor - however precise I may be as to the requirements of the court, to urge a complete chain of evidence was to simply ignore the practicalities of the matter and the real needs of the client.

However, experience has taught me that the reality is far from as acute as I had feared. In the space available to me I would like to make brief reference to a number of examples, some of which I hope to develop on this site in coming months.

Standard form JCT and ICE contracts

Take for example the various standard form JCT and ICE contracts, which are modified only as and when expressly agreed in advance. This provides certainty for the parties and a firm basis for any necessary action for breach of contract, although the certainty can be significantly undermined if the amendments are not carefully and clearly drafted.

The role of the Contract Administrator is crucial, be they Architects, Quantity Surveyors, or specialist Construction Management Professionals. Many that I have met have a clear understanding of the contractual principles that will be applied should proceedings be required, tempered by a thorough practical understanding of the construction process.

The increasing use of Project Manuals and online data rooms has led to better and clearer information flow between all stakeholders in a construction project. Decisions can be made more efficiently and can be based upon fuller and more comprehensive information. However a word of caution is appropriate - whilst the internet facilitates greater opportunities for communication, construction projects necessarily require significant ‘hands-on’ management, and arms length administration of this nature can jeopardise the necessary direct contact needed to properly control and manage a project.

In recent times the law has become more attuned to recognising the realities of construction issues. One sees this particularly in England with the well developed body of law produced by the Technology and Construction Court in London. In Jersey, there are, unsurprisingly, far fewer cases before the Royal Court. However in such matters one might expect that the Royal Court will derive considerable guidance from the English authorities in this area and it is plain that the courts will endeavour to take a pragmatic approach to construction disputes.

Arbitration

Construction matters have been at the forefront of the development of alternatives to traditional court-based litigation. Arbitration clauses are common place, though experience leads me to question whether Arbitration consistently offers swifter or cheaper dispute resolution, given the very significant costs that can be incurred.

Parties have commonly used the Adjudication process and whilst it has the attraction of speedy dispute resolution it is plain that it is being used to determine more and more complex disputes, often within very short time frames. It has been fairly criticized as litigation by ambush because it enables a party to strike when he is good and ready, but allows precious little time for the response. Nevertheless contractors (and in particular small contractors) committed to large Projects and dependent on regular and smooth case flow have clearly benefited from this process.

Whilst I have a nagging concern that I have been a lawyer for so long that the entire field of construction law has only been introduced since I started in the profession, the reality is that in recent years the law has been far more concerned to address the particular issues arising in the construction law field. Whilst that process appears to have met with a level of success in England, the extent to which Jersey has been a part of that process is more questionable. Nor is it a matter of mere academic interest when one takes into account the significant level of construction in Jersey at the moment.