International Construction Law Review
INTRODUCTION
CHANTAL-AIMÉE DOERRIES KC
PROFESSOR DOUGLAS S JONES AO
Taking the time to ask challenging questions about how things are done, and in some cases, of the so-called norms of business, is an important part of any sector intent on staying ahead and relevant. Building on aspects that are considered to be effective and looking to reform those practices which could be improved or modernised is part of this. The construction industry, with its strong engineering aspect, has always been at the forefront of modernisation. Similarly, its lawyers have often led the way in finding innovative ways of contracting and of resolving disputes. In this issue, our contributors ask whether there are useful changes which could be implemented.
Our first contribution grapples with the question of whether there should continue to be a place for an employer’s retention in construction contracts. Jeremy Coggins and Mitchell Francis consider this question against the backdrop of the recent private member’s Bill in the UK House of Lords, the Construction (Retentions Abolition) Bill 2021–22 (UK), which aims to prohibit the practice of allowing the paying party in a construction contract to withhold retention. In “Is There a Place for Retention in Today’s Construction Industry?” the authors consider whether abolishing retention is the right course for the construction industry or whether there are alternative solutions which are more appropriate and beneficial by way of regulating retention. The endurance of retention in the construction sector, and its contracts, since the mid-nineteenth century evidences the efficacy of the arrangement as a form of performance security, but the authors also acknowledge the abusive practices which can lead to non-payment, or delayed payment of the retention monies to sub-contractors. Coggins and Francis caution against abolishing retention, particularly given the temptations to circumvent any ban through other mechanisms. Instead, they suggest consideration of steps which have been taken in various jurisdictions towards the regulation of the operation of retention (i.e. other than abolition), including retention trust schemes, retention caps and payment deadlines. These regulatory measures are intended to address the perceived abusive practices and the authors suggest that there is much to be learned, now and in the future, from assessing how effective these measures prove to be in practice.
In “Non-Pecuniary Damages in Construction Contract Claims: Looking for Principles” M Saleh Jaberi considers why courts apparently have been less inclined to award compensation for non-material damage such as inconvenience or mental distress, caused by breaches of contract and analyses the exceptions to this general rule in various jurisdictions, with the aim of identifying umbrella principles for awarding damages for non-pecuniary harm in building cases. In this interesting article Jaberi challenges the view that recovery for contractual non-material damages is possible under the
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