I am gratified to see that Construction Law Journal has published a review of my book by Dr Hamish Lal, Adjunct Professor of Law at Sutherland School of Law. There are several words and phrases which would warm the cockles of any author’s heart:

• eminent in the field of construction law
• the full spectrum of potential arguments
• well researched
• powerful
• There is no obvious gap or need for improvement in this book
• comprehensive
• excellent point of reference to counsel, arbitrators, judges and construction industry professionals
• forces readers to think creatively
• an important compelling authority
• an influential text

The review in full is on my reviews page.

I hope it is not unduly selfish of me to Continue reading →

I have long thought that the Australian Construction Law Newsletter is rather a good publication.[1] and I am even more favourably disposed to it since they have just published a favourable review of my book Extra-Contractual Recoveries[2] by Phillip Greenham, until a few years ago the senior construction, engineering and infrastructure partner at Minter Ellison, Melbourne, and now arbitrator.

The review says that I have “vast knowledge and interests” and that the book is “informative, authoritative and comprehensive”. That is very flattering, of course, especially coming from someone with such formidable seniority and experience. More practically, it says

Any advisor looking to assist a contractor who has its back against the wall because of provisions in a contract will be greatly assisted by the book.

And that is certainly Continue reading →

Here is my paper delivered at the Society Of Construction Law Conference a couple of weeks ago:

SoCLA National Conference 2022

“Getting Risk Right”

Hobart

5 – 7 May 2022

EXTRA-CONTRACTUAL RECOVERIES:

12 HIDDEN OPPORTUNITIES AND RISKS

Robert Fenwick Elliott[1]

Introduction

1. As bespoke contracts have become lengthier, and more heavily laden with Queen of Hearts clauses[2] and “I Delay, You Pay”[3] arrangements, it has increasingly been the case that the contractual entitlement of contractors and subcontractors to commercially reasonable payment for their work is shut out by express contractual provision. They may read the contract once, twice, or 20 times, and find no express contractual route to payment. In those circumstances, it is necessary to turn to extra-contractual routes to recovery; that is to say routes to recovery that are not to be found in the express words of the contract.
2. These routes have become all the more important. They are not much taught in law schools, and are frequently overlooked by claimants to whom they may be available.  As such, they can represent hidden opportunities for claimants.  They can also constitute hidden risks for employing parties – both owners and contractors who engage subcontractors –  that may not become apparent until a legal case against them has been advanced in legal proceedings.
3. Understandably, a good deal of what is said and written about construction law centres on construction contracts. This paper focuses on one aspect of construction law: what rights are available to a party which executes construction or engineering work to get paid? And understandably, people typically start looking at the express wording of the contract. And those who are to pay for the work typically assume that their liability to pay is limited to what the contract says.
4. There are two particular problems with this approach. Firstly, there are numerous alternative routes to payment for work other than the express wording of the contract.  This paper is intended to illuminate the overall landscape of extra-contractual recovery by looking at a dozen particular paths.[4] Some of them are very well established. Others are more speculative.
5. The author has not made a precise count, but guesses that in about half of the recoveries in which he has been involved as a lawyer have involved[5] some element of extra-contractual recovery, often pleaded in the alternative to the contractual right.
6. As one looks at these alternative routes, one sees a second problem. Very often, parties do not do what they have contracted to do. Conceptually, this is easily understood where the contractor does not build what he has contracted to build, and thus becomes liable for the cost of rectification, either under the contract or by way of damages. More complex is what happens when the owner, and/or the owner’ s agents, do not do what they are required to do by the contract. A number of the alternative routes to payment are concerned with the legal consequences of such failures.
7. Clearly, these alternative routes to payment represent opportunities for contractors and risks for owners. They are not as well recognised as they might be, and it is in that sense that they might be characterised as hidden. For the parties who have undertaken work for which they have not been paid, notwithstanding their legitimate commercial expectation, the takeaway from this paper will be that it is worthwhile going through these alternative routes in order to see whether any of them are available. If you are advising an owner, the takeaway is not to be too myopic about the contract: the risks might well lie elsewhere.

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Hurrah!

I am delighted to be able to say that my book Extra-Contractual Recoveries for Construction & Engineering Work – published by London Publishing Partnership next month – is now available for preorder.

Preorders are already coming in, obtaining the discounts applying for the next 3 weeks.  The publisher’s book page is at https://londonpublishingpartnership.co.uk/extra-contractual-recoveries/.

Happily, the reaction so far has been good:

“This text, the magnum opus of an already impressive oeuvre, will make a formidable contribution to the domain of construction law and provide great value to counsel, arbitrators, judges and construction industry participants at all levels of the industry.”

— From the book’s foreword by Professor Douglas Jones, international commercial and investor/state arbitrator, and an International Judge of the Singapore International Commercial Court

“The merit of the book lies in the author’s encyclopaedic knowledge, but also in its engagement with the real-life business of setting up and running projects. It will delight all those (lawyers and construction professionals) in the business of claims and defending against them. To have such experience distilled in such a rigorous and systematic way is a gift to the reader.”

— Philip Britton, co-author of Residential Construction Law (Hart, 2021) and Visiting Professor (Law), King’s College London

“To the unwary, a construction contract may give the impression of creating a complete universe of rights and obligations.  Yet any contract is merely foreground, against a wider landscape of common law, statute and sometimes even customary laws.  Contracting parties need to know where they stand from an overall legal perspective.  In Extra-Contractual Recoveries, Robert Fenwick Elliott shows us with great clarity the ‘Yang’ of construction law that nestles against the ‘Yin’ of the contract’s written letter”.

— Julian Bailey, author of Construction Law (3rd edition, LPP, 2020) and partner at White & Case LLP, London

“Construction law is traditionally understood to be primarily a subset of contract law, as applied in detail via the common law and via standard and bespoke forms of contract. This understanding can obscure the growing importance of remedies which lie outside (or, adjacent to) this contractual realm. This book is valuable not only for bringing these extra-contractual matters out of obscurity but in its sheer generosity of insight, drawn from the author’s deep and thoughtful engagement at the forefront of international construction law discourse and practice over many years. The international construction law community, and the broader community it serves, will be all the richer for this book’s contribution.”

— Dr Matthew Bell, Associate Professor and Co-Director of Studies for Construction Law, Melbourne Law School, The University of Melbourne

The book took me really Continue reading →

As usual I have, when time allows (this is not every day) been making progress with my book on Extra-Contractual Recoveries.

In the last day or so, I have been particularly focused on the question of whether it is possible to contract out of the time at large principle by a generalised exclusion clause along the lines of, “Nothing we do will set time at large under this contract“. In Australia, at any rate, the usual answer is “yes”, and the brigade of solicitors who march up and down the relevant corridors in grey suits or black trouser suits now regularly insert a clause to that effect in pretty much every contract or subcontract over which they have control.

But is it true? The usual authority relied on is the judgment of Justice Brooking in SMK, but the more I look at it, the more I have come to the view that it does not bear the weight that is typically put upon it.

The current draft of Extra-Contractual Recoveries says this about the topic (obviously, the internal page references will not work for this extract).  I am conscious that this is not merely an important point, but also somewhat contentious one. And so if readers of these pages have any observations, I would be interested to hear them, so that I may take account of them before the book is finalised.

Contracting out of the Principle?

• Is it possible to contract out of the prevention principle, and/or the time at large principle? The answer to this question is not obvious, and certainly a good deal less obvious than is sometimes assumed in Australia. It has become an important question, because many bespoke contracts and subcontracts now contain clauses purporting to exclude the principle. If the principle may be excluded by such a clause, the effect is not infrequently to render a contractor (or more typically a subcontractor) liable to pay significant liquidated damages for delays of the owner’s (or more typically head contractor’s) making.
• It seems that there is no reason why the parties cannot agree, if they so wish, that the contractor is bound to complete the works by a stipulated date, without any extension of time and regardless of the prospect that the owner might well order additional work which makes that obligation more onerous, or even impossible. It is an unusual arrangement, but not entirely unknown. It means that the contractor is accepting potential liability in circumstances that are not of his doing, but again, that is not entirely unknown. After all, insurers regularly compensate people who are careless enough to burn down their own homes or crash their own cars.
• But what of a provision, typically tucked away unnoticed in lengthy boilerplate conditions, that purports to disapply the principle as a matter of generality?
• In Australia, the answer is usually given that it is possible to disapply the principle by such provision. The authority typically relied on is an obiter remark in SMK Cabinets v Hili (1983).[1] Justice Brooking declined to reach a conclusion as to whether the principle was one of implied term or of a rule of law, regarding that distinction as “largely of academic interest” and “simply a matter of terminology”.[2] He said, however, that “of course” the principle yields to contractual intention, and that the parties can effectively manifest by their contract an intention that the contractor shall be liable for liquidated damages notwithstanding the prevention. It is not clear what Justice Brooking had in mind by manifest contractual intention. Did he have in mind an express agreement that the contractor should be liable for liquidated damages regardless of the ordering of additional work? Or was he contemplating some general words disapplying the principle without any express manifestation of what that would mean? In any event, he did not find any intention to exclude the principle, and found that time was at large.
• It may be that the obiter remark in SMK is even more restricted. In Probuild v DDI[3], McColl J said that the operation of the prevention principle can be modified or excluded by contract, citing SMK as authority. But she went on:

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