Six papers given to the Society of Construction Law Hong Kong on 26 September 2003
Opening Speech: Secretary for Justice, Ms Elsie Leung GPM JP
The author discusses the Government's implementation of various recommendations and further proposals made following a series of defective piling incidents, in particular, the statutory and contractual reform proposals.
Introduction: the Tang Report and follow up - Statutory Reforms - Contractual Reforms.
Paper 1: Design Liability and Contribution: Who Pays?: Stephen Dennison QC
The case of Merryweather v. Dixon established the general principle of law that where two parties cause damage to a third, then that innocent party may recover the totality of his loss from either of the two wrongdoers. As between themselves, in terms of the degree of responsibility they bear for the loss, the two wrongdoers may have quite different levels of responsibility for the loss, but nonetheless, as long as they caused the loss, the innocent party may recover in full from either of them.
The author discusses:
‧ the importance of rights of contribution;
‧ the relationship between rights of contribution and the existence of a common liability to a third party;
‧ the impact of post contractual arrangements on the rights of contribution;
‧ the impact of the contractual distribution of risk on the rights of contribution; and
‧ the impact of sophisticated forms of modern procurement processes on the number of the potential claims for contribution.
The author: Stephen Dennison QC was called to the Bar of England and Wales in 1985 and took silk in 2001. He is a member of Atkin Chambers and a Member of the Technology and Construction Bar Association.
Paper 2: New Standard Forms: Robert Akenhead QC
The author outlines the new suite of standard forms of construction and engineering contract introduced by FIDIC in 1999, and the extent to which they have been adopted to date.
The paper notes the substantial shift from the previous 1987 editions and in particular the substantial transfer of risk onto the Contractor and considers the advantages and disadvantages which are likely to result for both Employer and Contractor.
In the context of four different 1999 forms, the author reviews the allocation of risk with particular regard to provisions in relation to: risk and responsibility; fitness for purpose; unforeseeable physical conditions; claims; defects; payment; and claims procedure. He concludes that the new FIDIC Contracts represent a major departure from the previous FIDIC regime: the (sometimes) friendly, impartial, Engineer has disappeared; a very large amount of risk has been transferred onto the Contractor; there are now very strict rules relating to claims which if not complied with will debar Contractor from pursuing them.
The author: Robert Akenhead QC was called to the Bar of England and Wales in 1972 and took silk in 1989. Since 1973 he has been in continuous practice as a specialist construction law barrister. He has an extensive practice as arbitrator, adjudicator and conciliator, and has been involved in Dispute Review Boards. He is also an editor of the Building Law Reports.
Paper 3: Construction Claims: Patrick Lane SC
The author provides detailed review of many of the most commonly advanced construction claims, and discusses the general legal principles involved, with reference to many of the leading cases on each from around the common law world, including many from South Africa.
The Contract – Standard Types of Contract – Right to Payment for Varied Work – Quantum Meruit – Disruption and Delay – Competing Causes of Delay – Acceleration – Time at Large – Concurrent Liability in Contract and Tort.
The author: Patrick Lane SC is a barrister admitted in England (member of Atkin Chambers) and in South Africa.
Paper 4: Aspects of Construction Insurance - The Implications of the Current State of the Global Insurance Markets for Future Disputes and Litigation: Adrian King
The author considers recent developments in insurance markets both globally and locally during the 1990s, with the unique ACP projects in Hong Kong, through to the aftermath of the events in the US of 11 September 2001. He looks at the consequences for the construction insurance market of a more risk-averse market, with particular reference to the types of policy commonly required for projects both large and small.
Introduction - Insurance Market Status - Insurers Have Become Averse to Risk - Contraction of Markets - Initial Over-Reaction - Major Projects v. Minor Contracts - Effects on Claims - Specific Shortcomings and Problem Areas - CAR - Third Party Liability - Employees' Compensation - Professional Indemnity - The Need for Mutual Co-operation in Future.
The author: Adrian King is Executive Director Infrastructure Projects of Aon Hong Kong Limited.
Paper 5: Free To Choose?: David Streatfield-James QC
The author reviews the difficulties presented by a limited choice of determinative processes (litigation and arbitration) and recent developments in the growth of alternative dispute resolution through both statutory intervention and more sophisticated contractual provisions. He considers the competing advantages of expense, time and correctness of the decision weighed against the multitude of different types and sizes of dispute, and some of the difficulties which can arise where dispute resolution clauses become too complex.
Background: partnering, civil justice issues, the role and restriction of choice - Nature of Disputes: adjudicative and non-adjudicative processes - Help Yourself: the problems of over-complication, the indemnity escape, the unintended consequence, multi-party disputes.
The author: David Streatfield-James QC is a Queen's Counsel in England and a member of Atkin Chambers.
Paper 6: Recent Developments in Australian Construction Law: David Goldstein
The author discusses a number of recent developments in Australian construction law with direct reference to relevant case law from both Australia and elsewhere in relation to extensions of time: superintendent's responsibilities, liquidated damages: penalties, public private partnerships, ADR: mandatory mediation and neutral evaluation, recent and proposed reforms to tort law, and terrorism insurance.
The author: David Goldstein is a partner of Minter Ellison in Sydney, Australia.