What is English Construction Law?

Construction Law is made up of various statutory and common law definitions. For example, the English Housing Grants and Construction Regeneration Act of 1996 defines a construction contract and construction operations. However, it distinguishes contracts for works and services from contracts for supplies.

In Julian Bailey’s book ‘Construction Law Volume 1’ he states ‘It may be inaccurate to speak of construction law as a discreet body of juror’s prudence in the same way as one may refer to contract, tort, or restitution as groupings of legal principles, but there is not a specific subset of any of those laws that applies just to construction and engineering projects’.

Construction law is made up of contract, tort, and restitution.

What is a building contract ?

Judges such as Lord Diplock (in the case Modern Engineering vs Gilbert Ash [1974]), stated that ‘A building contract is an entire contract for the sale of goods and work and labour for a lump sum, the price payable by instalments as the goods are delivered and the work is done’. In the same case, Lord Reid stated that ‘When parties enter into a detailed building contract there are, however, no overriding rules or principles covering their contractual relationship beyond those which generally apply to the construction of contracts’.

But what about Tort? Well, for example, in Anns vs. London Borough of Merton [1978] the House of Lords accepted the high-point of the Donoghue vs. Stevenson principle (this case laid the foundation of the modern law of negligence in common law jurisdictions establishing general principles of the duty of care) that Lord Wilberforce came up with a two stage test. This two stage test is based on proximity based on foresee-ability and also absence of negative factors. However, in D&F Estates vs. Church of England Commissioners [1988] it was stated in the case that ‘If the hidden defects in the chattel is a cause of personal injury or of damage to property, other than the chattel itself, the manufacture is liable, but if the hidden defect is discovered before any such damage is caused there is no longer room for the application of that principle and the chattel is now defective in quality but is no longer dangerous. It may be valueless or it may be capable of economic repair. In either case, the loss is recoverable in contract by a buyer or hirer of the chattel entitled to the benefit of warranty for quality but is not recoverable in tort by a remote buyer or hirer of the chattel’.

So, construction law is also made up of specialist construction contracts, such as, FIDIC, NEC4, and JCT, and in Ireland, the Public Works Contract and the RIAI form of contract, to note. However, what is in a contract? For example it could be liquidated damages, time provisions, contract administrator third party clauses, variation clauses, but these are all very distinct to construction law.

Construction law is also provided by construction law leading lights such as Keating and Hudson. Alfred Hudson (1852-1930) was the founding father of the subject. In Keatings, there was Donald Keating (1924-1995), who was the head of Keating Chambers from 1975-1992. He was the author of Keating on construction contracts.

But where are construction cases decided? In England and Wales, prior to advancing a case to the Court of Appeal and the Supreme Court, the Technology and Construction Court (TCC) is used. The TCC was created in 1998 and is based in London; however, it has regional centres around the UK. Unfortunately, no such specialist court exists in Ireland. It can be argued that a specialist Court in Ireland would be gladly welcomed.

There is also an abundance of information about English construction law, such as the Society of Construction Law papers, Construction Law journals, and International Construction Law Review. In addition to this, the law is also being developed through legislation, such as the English Arbitration Act 1996, the Consumer Rights Act 2015, the Supply of Goods and Services Act 1982 and Contracts Right of Third Parties Act 1999.

Specifically, though, construction law has been developed with the English Housing Grants and Construction Degeneration Act [1996] in the UK and it was then amended under the Local Democracy Economic Development and Construction Act [2009]. The comparative legislation is the Construction Act 2013. English Construction law is also evolving through the Build and Safety Act 2022 in light of the Grenfell disaster and the upcoming Procurement Act 2023.

There are constraints on the self-regulation of construction projects, for example, the Liability for Housing Projects and Defective Premises Act [1972] and planning laws such as the Town and Country Planning Act [1990], which was also updated in 2015 and 2017. In terms of contract and tort, these are major areas of construction law.

Construction law has made a massive contribution to the law of Tort over the years and specialist construction contracts in English law have been used and created, such as JCT and NEC. However, as well as text books, construction law has a whole plethora of journals, literature and reports.

To conclude, construction law is a large body of information consisting of legislation and contract and tort developed over a number of years under the common law jurisdiction of English law.

So, what are construction claims? We will review in our next Blog…

If you have any questions about contract claims, please do not hesitate to contact us at info@constructiondisputes.ie.