The Society of Construction Law (SCL) in the UK was formed in 1983 when the Founder Members signed the initial constitution at the Whig and Pen Club in the Strand opposite the Law Courts. It was formally launched by the Rt Hon Sir Derek Walker-Smith PC QC at the RIBA in London later in 1983. It has proved to be a much more successful body and a much more useful one than was anticipated at the time of the launch; and the model of what the society was for and how it should be structured has been copied in many other countries.
The idea for such a society had arisen quite some time earlier, triggered by an invitation from the then chair of the small group of Continental societies interested in construction disputes to attend one of the regular get togethers that those societies had. The invitation went to McKenna’s and happily was passed on.
The gestation period was lengthy, in part because there was considerable opposition to the idea of including non lawyers in the demographic eligible for membership; and in part because there was a considerable discussion of the shape the proposed Society should take and the principles upon which it should rest.
The various founding members, coming from a variety of disciplines, brought different thoughts; and there was a considerable input from Robert Goff, at some part of the period the judge in charge of the commercial list and who remained very supportive as he ascended the judicial heights.
It was also possible to draw on the Continental examples – both as to what to do and as to what not to do. It was important for the Society to make a real contribution to dispute resolution so that membership of it had (appropriately enough) a concrete justification and a meaningful return for the subscription. The continental societies, at least at the continental level, did little towards taking construction law forwards – Professor Gauch of Switzerland regularly objected about this. They were lawyer only and thus the discussion was limited in its scope even when there was a discussion. (It should be added that none of these somewhat negative are any longer true in any substantial sense.)
It was important to avoid having a salaried bureaucracy to administer the society, since that would create the syndrome, easily observable in other bodies, where the principle purpose of the subscription was to finance the bureaucracy. In consequence Council members have always undertaken a considerable administrative load, in addition to their day jobs. It was important to avoid another syndrome, where the “society” essentially comprised just one or two people – called, perhaps, the President and Vice President – or where there was a society with a considerable membership but the President appeared to have been elected for life. Neither of these models made for a society that would be responsive to the moving scene that was, is and will always be the construction industry and the law. One consequence is that all positions in the Society are time limited.
Looking in a different direction, the involvement of Robert Goff arise because construction has originally been included in the remit of the Commercial Court when the latter was set up. Originally the court would have decided the legal issues and sent the nuts and bolts off to referees effectively to fill in the gaps. Over time the habit had grown up of moving the whole of the case to the referees.
While many of the referees were excellent judges of high court quality that was not always the case and – despite the importance of the industry to the country – the resolution of such cases had come to be regarded in many quarters as a second rate activity – “bricks and mortar” cases without any real law. So another aim of the nascent society had been to reverse this approach.
The situation of construction law in the United Kingdom and elsewhere has changed greatly over the decades since the founding of the Society. It is suggested that the Society’s activities have contributed to and helped t drive the changes; in itself that is sufficient justification for its existence if justification is needed.
Looking back it is the suggested that comfortably the most important decision made by the founders was the opening up of membership to all interested in the resolution of disputes and in the smoothing of the progress of projects. It is a key difference when compared to the continental societies at the time of the founding. It is similar to an aspect of the approach of the Chartered Institute of Arbitrators, which in the 1980s was very construction oriented and it is similar to the decision taken by the Society of Construction Arbitrators, founded the same year (as were Tecbar and Tecsa), albeit with a deliberately limited membership. Thus it was that the Founder Members, in terms of principal qualifications, comprised four quantity surveyors, three engineers and one architect who together comfortably outnumbered the four lawyers.
Much of the initial thinking and organisation was done by John Tackaberry KC, a leading member of the English construction bar, and the kitchen of his house in Willes Road, Kentish Town has passed into the lore of the Society as the venue for many of the early meetings.
John Tackaberry was the first President of SCL, being succeeded by His Honour Judge Humphrey LLoyd KC, subsequently a member of the Official Referees Court, subsequently the Technology and Construction Court, and then by the late Leonard Fletcher, still the only non-lawyer to have held the post. Mr Fletcher played a leading role in setting up the Hudson Prize essay competition (subsequently re-launched as the SCL Hudson Prize), part of SCL’s active programme to encourage thinking and writing about construction law. Similarly the late Frances Paterson MBE had for many years an important role in preparing the Society’s papers for publication. She became in time President and also in 1995 the Society’s first Chair.
Growth in size of membership and scale of activities meant that, in addition to a President, who since that time has always been a senior member of the judiciary, the Society needed the equivalent of a chief executive officer to chair its governing Council and to oversee the administration and running of its activities. Since 1996, there have been 17 Chairs, elected by Council, for either one or two year terms. 8 of these have been lawyers, and 9 non-lawyers.
To conclude, it is essential to acknowledge that none of the aspects of the Society that are mentioned above would count for anything without the membership. It is the membership that has provided the energy that has made it what it is – of which a good example has been the steady growth of the annual lunch, from its very modest beginnings, through a long and happy time at the Brewery in the City and now taking place at the Grosvenor Hotel in Park Lane where some 1500 attendees sit down every February. Whether that will survive the Covid 19 is a nice question, but what one can, it is hoped, be confident about is that the Society will continue to be driven by the enthusiasm of its membership and that it will respond meaningfully to that enthusiasm.