This page notes some reviews of my book Extra-Contractual Recoveries for Construction & Engineering Work in reverse chronological order:

Building and Construction Law (2023) 38 BCL 338

Book Review

EXTRA-CONTRACTUAL RECOVERIES FOR CONSTRUCTION & ENGINEERING WORK

Extra-Contractual Recoveries for Construction & Engineering Work, by Robert Fenwick Elliott, London Publishing Partnership, 2022, xci + 1O77pp, 2 Volumes: ISBN: 978-1-913019-57-0. Hardcover.

Reviewed by Michael Christie SC

The learned author of this two volume book is an eminent construction lawyer. During his long and distinguished career in the United Kingdom and Australia, he has acquired a deep understanding of construction disputes. In this book, he shares his invaluable insights with readers.

The book is concerned with a topic of enormous practical importance: the recovery of money outside the strict limits of a construction contract.

Such recovery has long been recognised at common law and in equity. Indeed the first construction dispute determined by the High Court of Australia concerned a claim for extra-contractual recovery: Liebe v Molloy (1906) 4 CLR 347. Extra-Contractual Recoveries for Construction & Engineering Work is the first book to deal specifically with this important subject.

The theme of the book is encapsulated in the opening paragraph, where the learned author states:

For good reason, most texts, and indeed most decided cases, on the subject of recovery of payment for construction or engineering work focus on the contractual arrangements between the parties. But there are a number of circumstances in which the common law or equity will facilitate a recovery by a contractor on a different basis, because there is no contract between the parties, or because a piece of contractual machinery that was intended to regulate payment has broken down, or because of some other factor. In other circumstances, legislatures have taken the view that particular contractual regimes are potentially one-sided, or have been so abused, that it has been necessary to introduce statutory interventions, so as to allow contractors to recover payment for their work in the face of contractual restrictions. This book is intended by way of survey of these extra-contractual routes. They include not only claims in tort, quantum meruit and misrepresentation, but also claims based upon aspects of contractual law, such as prevention, repudiation, and breach of implied terms. The common feature of all of these avenues is that the basis of the claim, or the ways in which a seemingly fatal obstacle to be found in the express terms of the contract might be circumvented, is not to be found within the four comers of the express terms of the contract. The key to unlocking payment lies somewhere else.

The author states that “[t]his book is primarily intended to engage the interest of contractors and subcontractors who have undertaken construction or engineering work, and who are having difficulty in getting paid for it” (p 11).

Following an introductory chapter, the book deals with Implied Terms (Chapter 2); Intermediate Agreements, Certifications, Etc (Chapter 3); Circumvention of Contractual Provisions (Chapter 4); Damages for Breach of Contract (Chapter 5); Misrepresentation (Chapter 6); Quantum Meruit (Chapter 7); Negligence and Other Torts (Chapter 8); Repudiation, Frustration ad Other Doctrines (Chapter 9); Statutory Recoveries (Chapter 10); Bills of Exchange, Bonds, Liens, Charges, Etc (Chapter 11); Contracting Out of Extra-Contractual Liability (Chapter 12); Adjudication and Other Recovery Techniques (Chapter 13); Procurement and Management (Chapter 14).

Volume II contains extracts from leading cases and from statutes.

The practical importance of the subject matter of the book is correctly noted (p 2):

The topic is of rather more importance than the lack of previous academic attention to it would suggest. Although it is hard to come by reliable statistics, it is probably the case that a sizeable proportion of results in large construction law disputes is influenced to a greater or lesser degree by extra-contractual claims. Sometimes, the courts have delivered judgments in which extra-contractual claims have been allowed, but more often cases are settled in circumstances where the defendant has reason to fear an extra-contractual claim may succeed.

One very helpful feature of the book is the use of “checklists”. For example, in Chapter 1 (pp 18-20) there is a thorough list of matters for consideration by contractors in considering whether extra-contractual recovery is available to them. These matters should be of great interest to owners too: as the author observes (p 2), “[n]ot infrequently, extra-contractual claims come as a particularly unwelcome surprise to owners.” Another example of the use of a “checklist” is in Chapter 3, which contains a checklist of “possible routes to recovery without a certificate” (p 70).

An outstanding feature of the book is in the application of legal insights to problems that can arise in practice in various common law jurisdictions. Chapter 4, headed “Circumvention of Contractual Provisions”, is good example of that. It is the longest chapter in the book. It contains a section on “Control of Unfair or Unconscionable Contract Terms”, which focuses on penalties, and the “different international approaches in common law and equity” throughout England, Australia, Singapore, New- Zealand, India and Malaysia. There is also a discussion of statutory controls in the United Kingdom, Australia and India. There is then sections on “Circumvention of Conditions Precedent to all Payment Rights” (p 83) and “Attempts to Exclude Implied Terms – ‘Entire Agreement’ Clauses” (p 85). There is a detailed section (p 86) on “Pay-When-Paid Clauses”, the subject of the recent decision of the High Court of Australia is Maxcon Constructions Pty Ltd v Vadasz (2018) 264 CLR 46; [2018] HCA 5. Next, there is a section on “Circumvention of Cross Claims” (p 91), in which he reviews difficult issues that arise in relation to “prevention”. The learned author states (p 97):

It is not uncommon for a contractor, faced with a cross claim for liquidated damages, to argue that he has been prevented from completing because of some default by the owner, such that time is at large. The proposition – to some surprising, but long-established in law – is that a relevant act of prevention has the effect of setting time at large, such that the owner is denied the benefit of her contractual completion date, and liquidated damages. The contractual regime is, so to speak, shattered and not merely adjusted, and in place of the contractor’s obligation to complete by the contractual completion date, there is substituted a mere obligation to complete within a reasonable time.

The section in Chapter 4 on “Circumvention of Notice Provisions” is of great practical use. The learned author refers to standard notice provisions and what he calls “Queen of Hearts clauses”. He states (p 115): “The term ‘Queen of Hearts clause’ thus aptly describes those notice provisions that are designed to make it practically impossible for the contractor to give a compliant notice. The purpose of these provisions is thus to prevent the contractor’s claim from getting a fair hearing.”

After describing various features of such clauses, the learned author has a section headed “The arsenal of circumventions”, and states (p 116):

In these circumstances, it is unsurprising that courts have been prepared to draw from a fairly wide arsenal of arguments in order to relieve a contractor from the harsh consequences of failing to give a required notice, and the following approaches have in the past been taken.

He then lists, by reference to authority, those numerous approaches. The author deals with the requirements of a condition precedent. He reviews various forms of estoppel and waiver, and considers examples of these by reference to leading cases.

There is a very useful section (p 147) headed “Certification and Peninsula Balmain v Abigroup”. He correctly states: “Whether a certifier is entitled – or even obliged – to certify extensions of time and/or money in the absence of a notice required by the contract depends on the wording of the contract.” The author then reviews examples of the manner in which a range of notice clauses have been considered in several jurisdictions (pp 148-154). There is then a section on “Breakdown of Contractual Machinery”. Like many other parts of this book, on that topic the author collects the authorities and provides insights in an original and very useful manner. Finally, there a section on unconscionability and relief from forfeiture, including the prohibition of unconscionable conduct by the ss 20 and 21 Australian Consumer Law.

Other chapters in the book are just as helpful as Chapter 4. For example, Chapter 12, on “Contracting out of Extra-Contractual Liability” deals with issues of great practical importance seldom considered in the literature. They include “risk allocation, particular exclusions of common law principles, and contracting out of liability for misrepresentation”.

Another useful feature of the book is that it deals with issues that arise at all stages of a project, as well as post-termination issues. The book goes further, by providing guidance to parties at the pre-contract stage. The author provides “observations about how … parties might improve their position at tender stage” (p 381). He provides tender strategies for owners and contractors in Chapter 14 (“Procurement and Management”). Lawyers who advise on drafting construction contracts would derive great benefit from reading this chapter.

The foreword to this book is written by Professor Doug Jones, an eminent international arbitrator and Judge of the Singapore International Commercial Court. He observes that until the publication of this book there had been no “comprehensive reference text examining this particular area of construction law in the Australian and English contexts”. Professor Jones states:

This publication admirably fills that vacancy by offering an encyclopaedic analysis of the available paths to recovery outside the four comers of the contract. The book is simultaneously broad and focussed on its ambit – broad in its wide-ranging review of topics, yet all supporting the central thesis that, ultimately, commercial fairness should be achieved between contracting parties.

He continues:

It is undoubtable that 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.

This high praise is richly deserved. Extra-Contractual Recoveries for Construction & Engineering Work is an excellent book. It is an original contribution to construction law literature. The book is clearly written, and is a pleasure to read. All construction lawyers, both those involved in disputes as well as those involved in drafting contracts, would benefit from reading this book.

Construction Law Journal (2022) 38 Const LJ Issue 8 page 584: Dr Hamish Lal

Extra-Contractual Recoveries for Construction & Engineering Work, by Robert Fenwick Elliott, (London Publishing Partnership, May 2022), 1280 pages, 2 Volumes, hardback, £195.00, ISBN: 978-1-913-01957-0.

The author is eminent in the field of construction law. The author’s aims were two-fold: to produce a handbook suggesting (perhaps recommending) an array of ways that contractors can make financial recoveries in circumstances where there are no available express contractual routes; and to produce an essay on the topic of how law can be used more generally to override contractual drafting as means to achieve commercial fairness in construction contracts. The author has very much achieved what he set out to do and indeed makes a strong normative plea for fairness in commercial contracts urging readers to “Stand back from the legalities. Ask what a fair-minded commercial person would consider to a fair and reasonable outcome of any legal conflict”. The book is written from a contractor’s perspective and as the (long) essay unfolds it becomes even clearer that the author has produced an intelligent and sophisticated road-map for contractors seeking to argue against and thus circumvent express contractual terms. This book is written in an easy-to-read format and readers will derive tangible benefits from the various checklists which are designed to force the reader to navigate step-by-step or incrementally all the possible causes of action or legal argument available to a contractor who is struggling to find relief in the express terms of the construction contract.

At 1280 pages over two volumes this book may at first appear to be overly lengthy given the ostensibly narrow topic under discussion. However, it is important to note that the first volume contains the legal analysis and is thus more important whereas the longer second volume reproduces key passages from decided cases and relevant legislation in England, Australia and other common law jurisdictions. Essentially, the first volume takes the reader on a journey that explores the full spectrum of potential arguments that may appeal to a contractor seeking recovery when the express terms of the contract appear to be fatal. The author fuses the primary thesis in his essay with the assessment of the case law such that there is an element of gentle advocacy that consistently favours the contractor or which supports circumvention of the express terms of contract. In this context the author is clear, suggesting “Taking these across the board, and generalizing considerably, the typical result for a contractor who has the merits in a payment claim but no express contractual route to payment, and who is prepared to advance his cases imaginatively and forcefully, is that his extra-contractual claim will, if carefully formulated and energetically pursued, typically succeed, at least in part”. Many of the arguments are fact or jurisdiction sensitive or based on well-understood but complex legal propositions but what this author has done is to collate all the arguments and map them so that a contractor can best understand the overall topography. The journey starts by looking at issues more closely connected with the contract: implied terms, certification and “circumvention of contractual terms”. We then move away from contractual entitlement to look at damages for breach of contract, misrepresentation, quantum meruit, repudiation and the utility of legislation. Chapter 12 looks at how extra-contractual routes to recovery can be cut off by express contractual provisions.

The book is well researched and sign-posts a number of historical construction law narratives such the Abrahamson Principles developed in the 1970s but also more contemporary legal points such as the utility of the so-called Braganza Doctrine discussed by the UK Supreme Court in Braganza v BP Shipping [2015] UKSC 17. Chapter 4 headed “Circumvention of contractual provisions” spanning over 100 pages in the first volume is powerful and to a large extent will resonate with contractors grappling with the orthodox problems of notice provisions, penalties, pay when paid clauses, unconscionability, time at large and breakdown of contractual machinery. For example, the section dealing with “Prevention and time at large” is excellent and references the key cases that a contractor may wish to rely upon when canvassing such an argument but the reader is left without a conclusion as to the relative strength of such an argument. This may be a by-product of the fact that the book essentially advances a pro-contractor or pro-circumvention approach. There is no obvious gap or need for improvement in this book. It is comprehensive and perhaps gives the reader much more than the title would indicate. There will of course be some readers wanting more analysis on NEC forms of contract or some comparative analysis with rights and obligations as expressed in commonly used Civil Codes. Such issues may well fuel further academic research with academics, postgraduate and undergraduate students but the author cannot be challenged.

Extra-Contractual Recoveries for Construction & Engineering Work is a welcome text in the world of construction law and it will provide an excellent point of reference for counsel, arbitrators, judges and construction industry professionals. The book forces readers to think creatively and to look outside of the express terms of the contract. Thus, the book will be especially cited by contractors who will see it as an important compelling authority in support of extra-contractual recoveries. The author must be congratulated on many levels for giving us an influential text.

Dr Hamish Lal Partner; Adjunct Professor of Law at Sutherland School of Law, Akin Gump Strauss Hauer & Feld; University College Dublin

Designing Buildings September 2022: Richard Winward

Extra-Contractual Recoveries for Construction & Engineering Work​, written by Robert Fenwick Elliott and published in May 2022 by London Publishing Partnership. Hardback £195.

Volume I, 392 pages (Principles & Commentary).

Volume II, 1077 pages (Extracts from Statutory Provisions and Case Law).

This new book by Robert Fenwick Elliott provides a wide ranging toolkit of legal principles and strategies for overcoming the contractual barriers and hurdles, now commonplace in complex construction and engineering work contracts, intended to defeat contractors (and subcontractors) financial claims. The book also provides legal routes for financial recovery when the underlying contract has been vitiated. As such it is written for the contractor but praemonitus praemunitus will be valuable to the client/developer. The book takes the reader through an explanation of relevant common law legal precedents, principles of equity and statutory vehicles and how they can be applied in practice to achieve financial recovery. The author helpfully sets out overviews, worked examples and check lists for the remedies being discussed. The book covers many international common law jurisdictions but by necessity, concentrates on the England & Wales jurisdictions and Australian federal jurisdictions.

Volume I Chapter1 helpfully and in part entertainingly, sets the scene and scope for the book. There follows 12 well structured chapters dealing with a wide range of issues and remedies. Inevitably with a book of such range, some topics, eg Chapter 3 certification or Chapter 4 circumvention of contractual provisions, are dealt with in greater detail than others eg Chapter 11 bills of exchange and bonds. Where appropriate, the author sensibly recommends further reading beyond the scope of the book.

The book achieves a good balance between legal analysis and practical application supported by an extensive set of precedents and case law in Volume II. It should be a welcome addition to the bookshelves of contractors, clients/developers and their professional teams.

It is available at: https://londonpublishingpartnership.co.uk/extra-contractual-recoveries/

This review was written by Richard Winward, CEO Designing Buildings.

Australian Construction Law Newsletter July/August 2022: Phillip Greenham

EXTRA-CONTRACTUAL RECOVERIES FOR CONSTRUCTION & ENGINEERING WORK
By Robert Fenwick Elliott
Published by London Publishing Partnership, May 2022

1.300pp, RRP AU$395/UK 195 (hardback)
ISBN 978 19 130 19570
Phillip Greenham, Arbitrator
Melbourne

The title of this publication does not fully describe what awaits the reader. The 2 volumes contain a discussion of much more than ‘Extra-Contractual Recovery’. The law in relation to the exercise of rights, and the potential constraints on the exercise of rights, whether derived through contract, extra-contractual avenues or statute is examined by the author.

Drawing upon the words of the author, Volume 1 is a text on the law and Volume 2 presents an extract of a selection of cases and legislation that are considered to be most germane. Volume is divided into two Appendices. Appendix A contains extracts from Statutory Provisions and Appendix B contains extracts from Cases. Whilst the material is drawn primarily from Australia and England other jurisdictions are also explored. These include Singapore, New Zealand, India, and Malaysia.

Not surprisingly, having regard to the author’s vast knowledge and interests, the exploration of the legal principles often includes a discussion of the historical context and origins of these principles. These provides the book with interesting colour and texture.

Throughout the text the author helpfully identifies cases which illustrate the point under discussion. Volume 1 contains a brief discussion of these cases whereas Volume 2 sets out relevant extracts form the most relevant and interesting cases. The case extracts in Volume 2 are contained in Appendix B of that volume and are preceded by a very helpful Table of Contents which identifies the judge whose extract is included and the particular issues which are canvassed in the extract. This approach is very helpful in facilitating the quick identification of the most relevant discussion.

Chapter 1 provides context, explores some history and sets the scene. In Chapter 2 the author then moves to a discussion on implied terms and then through to intermediate agreements, certifications and the like in Chapter 3. Not surprisingly, there is a strong focus on how a contractor might secure payment in Chapters 2 and 3.

The longest chapter is Chapter 4 dealing with the ‘Circumvention of Contractual Provisions’. The author notes that ‘… the term circumvention is not intended … to suggest anything underhand – but simply to indicate that there are a variety of routes around … contractual obstacles…’. The chapter includes an extensive discussion on notice provision and time bar clauses and on consequences of breach including liquidated damages and relief from forfeiture.

Chapters 5 through to 9 discuss topics such as damages for breach, misrepresentation, quantum meruit, negligence, trespass and other torts and repudiation, frustration and the like. I found the discussion on trespass and other torts particularly interesting. At first it might seem a little esoteric and it may be difficult to recognise its relevance. However, it is a reminder that there can be much power and opportunity in the sometimes forgotten nooks and crannies of the law.

Chapters 10 and 13 deal with statutory regimes. The Security of Payment regime (both the East Coast and the West Coast models) is the focus of Chapter 10. It is the East Coast model which receives the most attention. Adjudication is the subject of Chapter13, again looking at both the East Coast and the West Coast models together with a number of other jurisdictions. The additional jurisdictions are quite extensive and include Ontario, Alberta, Ireland and the Isle of Man.

Project Bank Accounts feature in Chapter 13. This discussion is an example of the currency of the book. Chapter 13 also deals with a number of other financial issues.

There is an interesting discussion regarding ‘No time at large’ clauses in Chapter 12, dealing generally with Contracting Out of Extra-Contractual Liability. This discussion builds on the earlier discussion regarding ‘time at large’ generally which can be found in Chapter 4. This discussion is an example of how the author often challenges what might be described as the reflex thinking on some of the important issues impacting on the construction industry.

Volume 1 concludes with Chapter 15 discussing tendering and the transition from the tender phase to the contract phase. I have found that this is often a misunderstood transition and the discussion here is of relevance to lawyers and non-lawyers alike. One of my pet issues is the common divergence between the administration requirements set out in a contract and the behaviour of those administering the contract. This chapter includes an interesting discussion of this issue under the heading ‘Contract administration – off piste’.

Robert Fenwick Elliott has produced an encyclopedic collection of material on Extra-Contractual Recovery and beyond. Elements of it could be extracted and reassembled into a brief history of some of the almost forgotten quirks of the common law. The existence of this material, interwoven with a more traditional academic coverage of the issues, results in a text which is informative, authoritative and comprehensive but which also the flavour of a historical novel about it. This aspect of the book moistens what might otherwise be regarded as a dry topic.

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.

Irish Law Times (2022) No 13 192: Dr Paul Hughes

EXTRA-CONTRACTUAL RECOVERIES FOR CONSTRUCTION & ENGINEERING WORK

Reviewed by Paul Hughes¹

London Publishing Partnership (2022)

ISBN: 978-1-913019-57-0

Format: Hardback

Price: £195; 1,300 pages (two volumes)

Most texts on the subject of recovery of payment for construction or engineering work focus on the contractual arrangements between the parties. However, there are a number of occasions in which common law or equity will facilitate recovery on a different basis. Where the basis of the claim is not found in express terms of the contract, unlocking payment may lie elsewhere.

Robert Fenwick Elliot’s book – Extra-Contractual Recoveries for Construction & Engineering Work- is an essential addition to the library of those who practice or have an interest in construction and engineering law. The book explores extra-contractual routes that a contractor may pursue to claim payment, including, implying terms into the contract, circumventing contractual provisions, misrepresentation, quantum meruit, negligence and statutory recovery.

Primarily the book refers to case law from England and Wales and Australia. However, where appropriate, reference is made to other common law jurisdictions including Ireland. The book is divided into two volumes. Volume I is the substantive text, while Volume II contains extracts from statutes and case law. This is very useful as the statutes and case law cited in Volume I can be easily located in Volume lI.

Chapter 4 of the book discusses avenues that might be available to circumvent contractual provisions, such as, conditions precedent (sometimes referred to as Queen of Hearts clauses). Cross claims and the breakdown of contractual machinery are also discussed. Chapter 5 reviews damages as a route to recovery as opposed to sums payable under the contract. Chapter 6 considers a contractor’s right to damages resulting from misrepresentation and how damages for misrepresentation may be assessed. Chapter 8 reviews negligent misstatement and negligent misrepresentation. Statutory recovery is discussed in chapter 10. Several jurisdictions are mentioned including Ireland. Chapter 13 discusses adjudication in a number of jurisdictions as a route to recovery and usefully identifies the relevant legislation in each jurisdiction.

The book is recommended and provides a valuable bank of knowledge for all those with an interest in construction law.

From the book’s foreword by Professor Douglas Jones[1]

“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.”

Pre-publication Comments

Professor Philip Britton[2]

“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.”

Julian Bailey[3]

“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”.

Dr Matthew Bell[4]

“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.”

[1] International commercial and investor/state arbitrator, and an International Judge of the Singapore International Commercial Court

[2] Co-author of Residential Construction Law (Hart, 2021) and Visiting Professor (Law), King’s College London

[3] Author of Construction Law (3rd edition, LPP, 2020), partner at White & Case LLP, London and Adjunct Professor of Law at Hamad bin Khalifa University, Doha

[4] Associate Professor and Co-Director of Studies for Construction Law, Melbourne Law School, The University of Melbourne

1 PhD (Law), FRICS, FSCSl, FCIArb, MCIOB J Senior Associate at A&L Goodbody.