黑洞社区

Eighteen months ago the DTI hosted a consultation day to consider changes to the Construction Act.

To you and me that means adjudication and improved payment rules. When I wrote about that day, 3 March 2006, I remarked on how 鈥渢he attendees were completely at odds with each other about revising the payment rules鈥�.

We have just had another consultation day. And do you know, this time the attendees were not all at odds with each other about revising the payment rules. They are only at odds with what the DTI 鈥� now called the Department for Business, Enterprise and Regulatory Reform 鈥� is proposing.

The reason is that the proposals are 鈥� and here I want to use all sorts of rude words; I want to take hold of the writer of the rules by his lapels, bash him on the head like Basil did to Manuel, and ask him to visit a building site on this planet 鈥� simply unfathomable.

I will tell you what is being proposed in a moment, but fasten first on this. The bloke what done the work needs, his money. To get it, he is willing to send an invoice (yes, yes we call it an 鈥渁pplication for payment鈥� 鈥� hurrah). If the bloke what does the paying disagrees with the application, the bloke what done the work wants to know why. Chapter and verse now. And if the difference between the two blokes is serious enough, there is another bloke called an adjudicator who will sort it out. Real life? Yes, of course.

"Your drink Sir [Hereinafter called 'The Pint']."

Instead, we got the Construction Act, a pig鈥檚 ear of a document. The payment rules are described in the latest edition of the 黑洞社区 Law Reports as 鈥渘ot conspicuous an example of the draftsman鈥檚 high art鈥�. Lord Hoffman, the senior Law Lord, said they were 鈥渘ot felicitous鈥�. Lord Neuberger went with 鈥渘ot well drafted鈥�. Well, blow me down, but here in the 2007 proposed changes it looks as though the same draftsman has been brought in.

We do not want a set of payment rules that uses bad language. Damn it, not even us lawyers really understand all this tosh

Look, we do not want a set of payment rules that uses bad language. Plain English will do nicely. The proposals talk of 鈥渟et-off鈥�, 鈥渁batement鈥�, a 鈥渂ecome due date鈥�, a 鈥渇inal date for payment鈥�, a 鈥渘otice鈥� for this, a 鈥渘otice鈥� for that. This is lawyer talk. Stop it. True, true, if you go to my local pub you will find every bricklayer and builder arguing about equitable 鈥渟et-off鈥� and common law 鈥渟et-off鈥� and cross 鈥渟et-off鈥�, to say nothing of 鈥渁batement鈥�. It occupies their drinking time. But damn it, not even us lawyers really understand all this tosh.

Here is a snifter of what is proposed: 鈥淓very construction contract shall provide for the giving of an 鈥榚ffective notice鈥� of the amount (if any) of the payment made or proposed to be made in respect of a payment which 鈥榖ecomes due鈥� under the contract, or would have become due 鈥榠f鈥� a) the payee had carried out his obligations under the contract; and b) no set-off was permitted by reference to any sum claimed under the contract or one or more other contracts; and c) no abatement was permitted.

鈥淭o be 鈥榚ffective鈥� such notice must be given to the payee specifying: a) the amount (if any) of the payment made or proposed to be made; and b) where the amount in (a) is less than the amount that the person issuing the notice considers would have been due had (a) to (c) in subsection (2) applied, the ground for withholding payment, or if there is more than one ground, each ground and the amount attributable to it; and c) the basis on which those amounts were calculated.鈥�

Please do not have any of this. Instead use plain construction industry English:

• Every construction contract shall provide 鈥渧aluation dates鈥� and valuation machinery, and dates or circumstances when monies will be paid. If not, the 鈥渟cheme鈥� rules will apply
• On or about five days before the valuation date, the contractor will submit his valuation in detail
• But the contractor鈥檚 valuation is the amount payable, save that on or about five days after the valuation date, the payer will submit his valuation if he disagrees with the contractor鈥檚 valuation, or if he has a claim, and say in detail why and how much. The payer鈥檚 valuation is then the amount payable.

See? No talk of 鈥渟et-off鈥� and the rest. No talk of what ifs. And when there is a difference of opinion between the two valuations, then either the contractor can shrug and make a better fist in his next valuation or call, if he must, for an adjudicator to shake out the valuation. Easy.