I sit on a number of groups on a pro bono basis, including one that is presently looking at the feasibility of a specialist construction list in the South Australian courts.
For someone who has experience of jurisdictions where there is a specialist construction Court or list, the notion of construction cases been dealt with by generalist judges, who might hear criminal cases, or matrimonial cases, or probate cases as well as construction cases, is a strange one. The concept of a judge as a “gifted amateur” who is able to turn his or her hand to any area of the law has very largely, around the world, been overtaken by a demand for greater professionalism, which in turn, requires greater specialism.
There are numerous reasons why specialist courts tend to be significantly more efficient than generalist courts in the area of construction law. Some of these reasons are obvious; others less so:
- Construction cases tend to be riddled with specialist language. In part, this language is technical, and it helps not to have to pause all the time to explain to a judge what a soffit is, or the difference between a beam and a girder, or why you might expect to see SHS in secondary steel but not in reinforcement. But also in part the language has to do with the contractual mechanisms which are in regularly use: the difference between a prime cost sum and a provisional sum, what the parties mean when they talk about delay damages as opposed to liquidated damages and so forth.
- Although construction law is not a beast alien to the common law as a whole (indeed, a number of common law concepts have their genesis in construction law) there are a number of aspects of construction law which do not regularly appear in other fields. It helps to have a judge who understands, for example, the concept of the breakdown of contractual machinery in the context of inadequate certification, and the extent of the forensic weaknesses of global claims and the practical impact, in terms of causation, of analysing construction delay by means of a Time Impact Analysis instead of a Collapsed Analysis. These concepts are not rocket science, but neither are they typically the fingertips of a generalist judge, and specialist judges are able, much more readily, to come to an understanding of what the essential issues are of any particular construction dispute.
- Construction contracts are notoriously lengthy and unwieldy. But they tend to follow reasonably well established patterns. Specialist judges become familiar with the standard forms that are in use, but just as importantly become adept at knowing what to look for in a bespoke forms. Even in moderate sized projects, much time can be wasted fully understanding every clause of the contracts – largely an exercise in futility. In a large PPP project, the contractual arrangements are so large and so complex that gaining an understanding of the main risks and responsibilities is a formidable task.
- In Australia, there is considerable complexity added by the huge amount of case law which has already developed in relation to the Security of Payment Legislation, which differs in subtle but important respects from state to state.
- The world has moved on from the unrealistic notion that, “Every litigant deserves a Rolls-Royce service from the legal system”. Particularly in construction cases, the notion of allowing the parties unlimited court time to present their cases leads all too often to an inevitable injustice: that the legal costs of establishing legal rights exceeds the monetary value of those rights. Specialist construction courts or lists are able to devise procedures which are much more streamlined than those applicable to single issue litigation. They have to be. Construction courts have led the way in procedural terms in a number of areas, such as electronic discovery, meetings of experts and hot tubbing.
The effect of these considerations is that for the courts to try to resolve construction disputes in general lists tends to be far more expensive, both to the parties and in terms of court resources, and it needs to be. Further, I suspect, there are far more appeals from decisions of generalist courts – it assembly been my experience since arriving in Australia that there have been appeals driven largely by the consideration that had generalist judge has had difficulty coming to grips with the realities of the construction industry.
If I were a judge, I would dread the task of having to hear criminal cases. Criminal judges do obviously has a huge effect on those concerned – both the accused and the victims – and I do not know nearly enough about the criminal law to have any confidence that I would “get it right”. But does the same consideration apply the other way around? A judge who spends his or her professional life hearing criminal cases might be rather attracted by the prospect of some variety of caseload? Sure, a construction case may be somewhat indigestible to a non-specialist judge, but nevertheless more interesting, perhaps, than yet another tawdry crime?
In the end, of course, the legal system is not there for the amusement of lawyers, whether judges or practitioners, but to provide a service for its users. And in construction cases, what its users require is a court which understands their industry, and is able to deliver tolerably reliable justice as independently, quickly and inexpensively as possible. The courts have not historically been good at this, which explains why the industry has turned to adjudication, review boards and tiered resolution procedures in their contracts as an alternative. For the relatively few cases which slip through these nets, and for the policing of these procedures, there is good reason to believe that the parties are better served by specialist courts.