Newsletter
Information for members
June 2002

Previous issue: May 2002
Next issue: July 2002

Programme

A reminder that the general evening meetings are free of charge to members and guests and that no booking is necessary

The AGM and Annual Dinner 2002

The AGM and Dinner were held at Middle Temple on Wednesday 15th May, with almost 160 members attending the dinner.

In the Council election this year there were eleven candidates standing for seven places. The four existing members of Council standing for re-election were returned: Helen Garthwaite, Peter Higgins, Nigel Jones QC and Fenella Mason and the three other successful candidates were: Julie Forsyth, Nerys Jefford and Dr Derek Ross. The Chairman of SCL, Victoria Russell, was automatically re-elected to Council.

Our thanks go to all the candidates and our congratulations to those who were elected.

A copy of the Chairman's report is enclosed with this newsletter and the Financial report as presented at the AGM can be found on the Society's website www.scl.org.uk

Honorary Members

Sir Philip Otton announced at the annual dinner that, in recognition of their outstanding contribution to construction law, Ian Duncan Wallace QC and His Honour Judge Anthony Thornton QC had been elected Honorary Members of the Society. Congratulations to them both!

Council Meeting 10th June

At the Council meeting on 10th June, Victoria Russell stepped down as Chairman of the Society, having completed two very busy years in that role. She will remain on Council for the time being.

Richard Bayfield stepped down as Vice-Chairman of the Society, in order to be able to devote more of his time to the Delay Protocol and the development of the Society's various IT activities. He will also remain on Council.

The new Officers elected by Council on 10th June for the ensuing year are:

Chairman: Christopher Miers
Vice-Chairman: Anthony Lavers
Treasurer: Jim Pragnell
Secretary: Helen Garthwaite

Many congratulations to all the new officers.

President's Medal

You may remember that Professor John Uff QC was the recipient of the first ever President's Medal in October 2000. Members are now invited to submit their nominations for this year's award.

If you would like to nominate a candidate or candidates, please email your suggestion(s) to Jackie Morris at admin@scl.org.uk no later than Monday, 2nd September. The candidate(s) need not be a member of SCL but should clearly have made a significant contribution to furthering the Society's aim of promoting the study and understanding of construction law amongst all those involved in the construction industry.

The winner(s) will be decided by Sir Philip Otton, together with the officers of SCL and the recipient(s) will then receive a special invitation to attend the President's Reception on 16th October.

European Society of Construction Law Conference

In conjunction with the Centre of Construction Law at King's College, the ESCL Conference 2002 will be held at King's College, London on Friday 12th July 2002; this will be a joint event between ESCL, SCL, King's College and the Society of Construction Arbitrators. The title of the conference is "Delivering Infrastructure: International Best Practice" and a number of internationally renowned speakers have already confirmed their attendance.

Conference brochures have been sent to all members of SCL; further information is available from the Society's website where on-line bookings may be made for the conference. If you would like a further copy of the conference leaflet and booking form, please contact Jackie Morris at the admin office.

Protocol for Determining Extensions of Time and
Compensation for Delay and Disruption

Over 150 people attended the consultation workshop held in London on 22nd May. The Society thanks Baker & McKenzie for hosting the event and to HHJ Humphrey LLoyd QC for chairing the workshop with such skill. For those of you who were unable to attend the event the format comprised presentation and discussion around the following ten topics:

1. Identity Problem - Contract Document or not.
2. Structure of New Draft - Protocol (Rules) - Guidance - Appendices.
3. Treatment of Float - Why the Contractor does not own the Float -Contractor's "Cushion", "Terminal Float".
4. Concurrency - General Issue - Concurrency and shifting the critical path.
5. Time Impact Analysis - One size fits all? and Prospective and Retrospective Analysis
6. Approval of the Program and Updates - financial incentives.
7. Record Keeping - guidance on cause and effect - skills of the Contract Administrator.
8. Contract Program as a "quasi-contractual" document.
9. Application of Protocol to smaller sized projects and tender allowance.
10. Compensation Issues - pre-agreeing prolongation costs - identification of prolongation costs during concurrent delay - global claims.

As a matter of record we should mention that the version of the protocol handed out at the workshop on 22nd May differed slightly from that posted at the website earlier that month. This latest version is now posted on the web site. The main differences between the two versions are the two charts (figures 7 & 8) on pages 69 & 70 that were originally reproduced without data on the initial version. In addition there were some very small amendments to the draft presented to the May 22 workshop at - Appendix A, page 6 - free float, Appendix A, page 12 - total float and at Appendix B, page 16 - Accepted Programme, paragraph 4.3.

The website now contains a comparison document between the November 2001 and May 2002 consultation versions of the protocol. To download any of these documents at the website you will need a username and password, both of which remain "egan".

For those of you currently planning seminars and events please remember that, whilst the Society actively encourages writing, discussion and events on the draft Protocol, the copyright of this document remains with the Society of Construction Law. Please refer to the website for the necessary permissions: http://www.eotprotocol.com/

Change the Face of International Turnkey Contracts

The ICC Commission on International Commercial Practices, based in Paris, is currently working on a draft of a new Major Projects Turnkey contract for international construction. The mandate of the group is to create a contract which is fair to all parties. If you are interested in taking part (at yours or your firm's expense!) contact Robert Knutson through the SCL.

Contracted Mediation

King's College London and University College London are collaborating in order to collect and analyse data on contracted mediation. Contracted mediation attempts to fuse team building, dispute avoidance and dispute resolution in one procedure. The impartial contracted mediation panel, consisting of one lawyer and one commercial expert who are both trained mediators, is appointed at the outset of the project. The panel attends site meetings and conducts workshops. The panel members should therefore have a working knowledge of the project and the individuals working on that project. This knowledge allows the panel to resolve contractual differences before they escalate, and provides an immediate medium for the confidential, mediated resolution of disputes.

However, experience of its actual use in practice is limited and evidence supporting the benefits of contracted mediation is anecdotal (note 1 below). For example, it could provide an economic dispute management technique for the majority of the industry's projects that cannot justify the cost of a dispute review board. But is there a real demand for contracted mediation in the industry? In other words; does it offer real benefits, is there a need for contracted mediation and is there a willingness to pay for it?

Recently, some major players in the supply side of the industry have started to actively encourage the use of contracted mediation for future projects. Further, the Government's "Dispute Resolution Guidance" pledges a commitment to ADR and states that its policy is to avoid disputes and "to ensure that the relationships between the client and supplier are non-adversarial… litigation should usually be treated as the dispute resolution method of last resort".(note 2 below) It is therefore possible that we will see some use of this process on several new developments in the next few years.

The research project hopes to capture these developments, collect data on its implementation, and provide the first research on contracted mediation in practice. If you have any experience of contracted mediation, or would like to consider using it on a project or would just like further information then please contact Nicholas Gould (Senior Research Fellow, King's College) at Fenwick Elliott on 020 7956 9354 or by email

(Note 1: Contracted mediation was used on Jersey Airport, see "Stopping disputes before they start" Commercial Lawyer Special Report, February 2001.
Note 2: Office of Government Commerce, "Dispute Resolution Guidance" www.ogc.gov.uk)

SCL Papers

As from Friday 14 June, online papers on the SCL website will only be free for download by SCL members and registered academics. Others will have to pay £2.50 per downloadable paper.

As an SCL member, if you would like to download a paper you must first register (one time only) and choose a username and password. Once your registration has been approved, you can download any paper for free. The first time you try to do so, you will be asked to input your username and password, but on future occasions you will not need to remember these details if you are using the same computer. (If you have set your web browser to refuse 'cookies', you will have to input these details each time you wish to make a download.)

To register for downloads please follow the link from the Papers page on our website.

SCL HONG KONG

The Society in Hong Kong has announced the office holders for their third year. They are:

Chairman: Douglas Wardale
Vice Chairman: Ian Cocking
Secretary: Clyde Yee
Treasurer: Nicholas Seymour

SCL Web Site: www.scl.org.uk

For those new to the Society and/or to the WWW our web site is a constant source of new information. Items which have arrived too late to be published in a Newsletter, or details of meetings which have been arranged after the seasonal Diary has gone to print, will be posted on the website. It contains details of our future programme and contact details for university book grants. Also on the website is the list of over 100 titles of past papers.

SCL Membership

Finally, we are pleased to welcome the following new members to the Society during Mayx:

Regional Coordinators

Are you moving? Will your contact details change? Do we have your email address? Please tell Membership Administration so that we can keep our records up to date.

Membership/Administration
67 Newbury Street
Wantage, Oxon., OX12 8DJ
Tel: 01235 770606
Fax: 01235 770580
Email