The Bible speaks of young men seeing visions and old men dreaming dreams [1]. There is no reason why this should not be the other way around. There is no reason why it should not be the older men who see visions, as in the case of the author of this piece.
In England, there is a rich literary tradition of visionary work: for example, in Langland’s Piers Plowman, Jonathan Swift’s Gulliver’s Travels and John Bunyan’s Pilgrim’s Progress. That tradition is perhaps less common in the Law. But the law must change to serve society and change requires vision.
The Context for the Vision
This vision envisages positive changes in Construction Law. More than ten years ago, I contributed a paper to the Society of Construction Law [2] and the article contained the following passage:
“Imagine this scenario: in 2011, it is decreed that a capsule be buried containing a summary of our laws currently in force in England and Wales, comprising case law and statute law and current regulations. Thousands of years pass. A subsequent, highly developed society digs up the capsule. An expert in technology and construction law is tasked with deciphering the contents relevant to his field.
He finds, here, a system of case law within which one case is apparently inconsistent with another. He finds a piece of legislation governing terms which should go into construction contracts, concerning payment and adjudication. Elsewhere he finds a more general Act about unfair contract terms and then another Act, generally about the sale of goods and supply of services and another about misrepresentation. He detects broad tensions between the legislation governing construction on the one hand and that governing insolvency on the other.
He concludes, quickly, that what he has been presented with can be no more than fragments – torn scraps of a greater manuscript, broken shards of a greater tablet, all jumbled up. Later scholars disagree. They uncover, with bemusement, that that this is all that existed by way of construction law in 2011. Society had simply not joined up all the pieces into a comprehensive code which offered clarity and certainty. Perhaps the pace of change was too fast, but surely if law makers had applied their minds, they would have put in place a system to deal with this?
What might that system be? Well, faced with a changing society, case law `and judge-made law would certainly be important, in order to absorb change and give it a valid legal context and direction. Statute law would continue to be written and co-exist with case law and be interpreted by the judges as before. What would be beneficial and prudent would be to commence a creeping system of codification.
One would begin with a major task of writing the central core for the construction and engineering code of law. Every five years perhaps, the existing laws, both statutory and regulatory on the one hand and judge-made on the other, would be consolidated and added to the current code. The process could not be comprehensively achieved in one attempt and by its very nature would have to be progressive, but it would gradually bring increased certainty and stability. Few would dispute that it would be worth the effort.”
Perhaps not surprisingly, in the decade since that was written, the clarion call for codification has gone unheeded [3]. But it is worth repeating it and reasserting why it is worthwhile.
Cracking the Code – Creating a Code for Construction Law
The greatest enemy of any legal system is uncertainty within the Law.
Without certainty, alternative arguments are raised on each side. When disputes arise, huge amounts of legal costs and a great deal of time and effort can be spent battling Court cases through successive appeals.
Litigants pay for the privilege of establishing points of law. As in Dickens’ novel Bleak House the parties may simply run out of money before a final decision is made by the Court.
If there is no appetite, within the Legal Establishment, to create a Construction Law Code, a solution may be for the Construction Industry to create its own and to write a consensual common Code that key organisations, stakeholders and players in the construction industry will agree to adopt. It could then be written into contracts across the Construction Industry, including professional appointments [4].
This Code could be written in instalments, topic by topic and progressively added to and expanded until it develops into something as comprehensive as possible.
Who would write the Code and how it would be recognised and established, would all need to be worked out. It could be a collaboration of University scholars or other academics, lawyers, (whether in practice or senior retired figures with some time available), judges, arbitrators and/or adjudicators, employers, contractors, sub-contractors and construction professionals. A drafting committee would have to be established. Funds may need to be raised from interested parties.
The advantage of the Construction Industry writing and adopting its own code by consent is that the industry can ‘own’ the initiative and have a voice in preparing it and therefore identify with it.
If the Code gained wider acceptance, then it might perhaps become a model for a code recognised by the Judiciary or adopted into a statutory or regulatory code.
Expanding Equity as a Companion and Aide to the Code
If indeed statutory/regulatory or Common Law codification were to be adopted, then there is a strong case for expanding and liberating the English system of equity 5] beyond its current confines so that equity would support codification.
The English system of equity 6] developed historically [7] to uphold fairness and mitigate or avoid the harshness of the Common Law [8] but has become restricted [9 – 11].
I contributed an article to Construction Law Journal in 2019 in which I argued that if codification could be achieved: “It should be supported by a rapid incremental growth of equity to moderate the potential rigour and hardness of the Code” [12]
This would help to ensure that a codified system was also a fair system.
Construction Case Reports to contain a Summary Layman’s Explanation
The drive to certainty and clarity in the Law can be greatly aided by summarising each Technology & Construction Court case report in a simple explanation for the Layman, equivalent to a head note.
The clarity and certainty in the Law which this article seeks will not be achieved by crystalline intellectual judgments, if they cannot be readily understood by those who seek access to justice.
I have argued for such a Layman’s head note or foot note previously.
My article ‘The Harm of Legal Fictions’ [13] reads as follows:
“If one poses the question, “For whom do the courts give judgment?”
Then at one level, the answer is immediately obvious. The courts give judgment for the benefit of the parties to the individual case being decided.
However, where the cases are significant and establish a legal precedent, the audience of the judgment is wider. The judgment establishes a legal precedent which is an authority for lawyers to follow. Until the recent past, judges would have had quite a restricted readership or audience of lawyers in mind in formulating judgments and in choosing the language used to express those judgments.
In the internet age, information is available to all and is accessible and transferable immediately. Does this not require that the law and the language in which it is expressed in the judgment of the court must be transparent and comprehensible to a wider audience?
If so, this affects the use of language by the judiciary.
Words within judgments must be used precisely to convey meaning. That precision can be achieved by using recognised terms which have, through history and tradition, acquired specific and precise meanings when one lawyer communicates those terms to another lawyer.
However, where the use of such terminology has become archaic in contemporary speech, the use of such terms can be confusing to the layman and a barrier to understanding. Does this not now need to be taken into account?
If the law is for every man, should the courts still use the French for “thing” (chose in action) in judgments explaining how English insolvency law affects those owed money in the 21st century?
Perhaps some of the disconnect …… between the law and the common understanding of the layman, derives not simply from the sophistication of the ideas conveyed ….but also from the language used by the courts to convey the concepts within the judgments.
Lost without translation?
These issues of language and meaning may seem academic. However, if the use of language can operate as a barrier which creates a tension and disaffection between lawmakers and those who live by the law, then the legal infrastructure should search for solutions to this problem.
The solution could be simple and practical. Judgments are reported with short head notes which summarise and precis complex points in a few words or phrases, to make them instantly accessible to lawyers seeking precedents.
A simple note could be produced as foot note to judgments, summarising the points of law decided in modern speech in order to convey their meanings simply to the layman.
The precise mechanism of responsibility for those would have to be resolved. It could be that the judges themselves would write these notes and that the notes would be agreed where there are several judges involved in appeal cases. It might be that editors of law reports would commit to writing these notes and sending them to judges for approval. It might be that the Ministry of Justice or relevant government body would engage specialist civil servants, specifically tasked to produce these foot notes to key cases and refer them back to the relevant judges for approval.
The mechanism can be devised appropriately if the will to communicate is sufficiently strong.”
As stated in the above passage, Courts give judgments for the benefit of the parties to each case. The Courts should, therefore, be speaking directly to those parties explaining why one has lost and the other has won. It is frequently and quite rightly stated that the Technology and Construction Court has developed and improved significantly in the 21st century. But there may remain scope for improvement here.
It was a great pleasure to listen to judges such as James Fox-Andrews, or Sir William Stabb (in the 20th century) giving impromptu judgments at the end of a case, confirming that a more formal note would follow but then taking the trouble to spell out why they had decided as they had, so that the lay individuals involved in these cases could properly understand. Perhaps we have seen a trend within the last 20 years towards judicial essay-writing in the delivery of judgments, producing judgments of great erudition deserving huge respect. But is there a risk that that ignores and even marginalises the very people whose time, effort and huge amounts of money have been expended on the case, if they cannot easily follow them?
For all these reasons this article commends the introduction of a layman’s note, published alongside the head note to case reports as we now have them.
In summary this article intends to convey a vision of how Construction Law could be developed and, although intended to be visionary, it offers very simple practical steps to augment and improve the law as it stands:
- Codification
- Liberation and expansion of equity to complement that codification
- Translation of case precedent by a brief explanatory note for the Layman with each case report
REFERENCES
1. Bible, T. (n.d.). Acts 2:17.
2. Harris, P. J. (2011). Economic Loss after Robinson v Jones. Society of Construction Law.
3. Welsh Codification takes two steps forward. (2019, January 14). Law Society Gazette, p. 6
4. Harris, P., & Klein, R. (2018, February 22). All together now. Retrieved from Building.co.uk: 9. https://www.building.co.uk/comment/legal-all-together-now/5092233.article
5. London Property Trust Limited v High Trees House Limited, 130 (Kings Bench July 18, 1947).
6. Snell, E. (2018). Snell's Equity. Sweet & Maxwell.
7. Lord Dudley and Ward, and an Infant, by the Honourable Thomas Newport v The Lady Dowager Dudley (Court of Chancery 1705).
8. Cook v Fountain (1676).
9. Diplock's Estate (1948 Ch 465 - 481).
10. Co-operative Group Limited V Birse Developments Ltd (495 2013).
11. Judicature Acts (1873 & 1875).
12. Harris, P. (2019). "Whither Equity?" or "Wither Equity?". Construction Law Journal, Volume 35 Number 4, 247.
13. Harris, P. J. (2015). Harm of Legal Fictions. Construction Law Journal Vol 31, Number 4.
