My Head Hurts

I am going to begin by ranting, unprofessional I know but I need it out of my head. If you stop reading here, its fine by me.

My wife has Cancer which she manages bravely, but recently she has been unable to stand or walk due to an entirely different malady. It has been months now and I am past the saintly husband mode, beyond the patient 'that's life' stage and I'm even questioning the possibility of this being Karma, payback for my past sins. I occasionally wonder whether I am hovering on the brink of yelling at the universe.

Its not the illness, its not my amazing wife of 49 years, its housework! It never ends! You clean and then people mess it up and you start again. I wash up, clean the kitchen then someone cooks, and pans knives, serving spoons, greasy trays and all manner of appliances stand to be hygienically scrubbed clean. I don't even know what some of these things are. I have only just become acquainted with the fact I own a garlic press, I know I wash it out every day!

I lived for a year in a five+ star hotel in Downtown Dubai, now that was living. I came home to clean sheets and towels, my laundry was taken and brough back folded, even starched. My most pressing decision was which of the 120 restaurants around town to eat in. They cook the food - I eat it, they wash up - or throw the dishes away, I didn't care. That makes sense.

Now I discover that eating in is actually the most expensive way to eat. I prepare dishes from Hello Fresh, it takes me an hour at my discounted home expert rate of ￡250 per hour. I eat it in ten minutes, and then spend another hour washing up and cleaning the kitchen. Two hours or ￡500 for barbeque meatballs with rice and a tangy passata sauce. I could get Harrods to send it to me hot for that, but I might still have to wash up.

Then the recipe says here are all the ingredients apart from Pantry items you will already have. I haven't had a Pantry since the 1960's. They say from your pantry take the Tarragon... I had to look up Tarragon on the internet, to see what it looked like, its a weed. I have plenty of weeds in the garden, and that's another thing that my wife did before, plants, flowers and things just wont stay where they are. They grow, they spread, uninvited weeds and critters invade. I'm not going there today, its too stressful.

I pay for help but when the lady leaves the house and kitchen clean, an hour later it looks like the homeless shelter I once volunteered at after Christmas Dinner.

To relax I resile to my study and do some real work and admin only to find that I get stuck in the 'bot' universe. I email with a complaint, seconds later I get a complaint number and a promise of action. Nothing happens, so I write again and get another complaints number and so on. I am at the stage now where I would even be happy to speak to Brian in Mumbai.

Terms and Conditions: Revisited

Let me start by saying the Wild West days of contract terms and conditions of the late 1980's have gone, thank goodness. They were exacerbated by one particular Law Practice who clearly had the ear of the London based developers, predominantly a senior female lawyer and a younger male drafter.

I was the Commercial Director of an International Construction company, I was also working with a delightful man called Rudi Klein at CASEC to help fight onerous terms. So, I came across these famous lawyers almost daily and when battle sirens sounded we were off to war. I had an LLB and lots of experience for a thirty two year old but it was hard work, and then I spoke at a seminar alongside a well known judge.

I don't drink and so I passed on a boozy night out with the speakers and delegates to eat in a quiet restaurant in the West End. A senior judge from the seminar was dining alone and he beckoned me to join him. In those days I was in the courts almost weekly and he knew me well. He noted that we couldn't talk about any case or arbitration in play or that we had both worked on. We chatted for an hour about the onerous clauses whose impact was littering the Official Referees with cases. He suggested to me two phrases that judges held dear, that might help me in contract drafting. I made a note.

Shortly afterwards, to avoid fruitless cases reaching the courts, the aforementioned lawyers called me in for a discussion on behalf of CASEC and my own company who had many such contracts, and we sought to agree new wording. It was a long haul and I was left negotiating with the draftsman rather than the senior lawyer. On the subject of withholding and set off (the main cause of disputes) I suggested that we allowed the developers to continue to deduct if it they had a genuine case. He agreed quickly, suspecting that I had been worn down, and I suggested this wording:

Deductions shall only be made if the developer has the Bona Fides. Then following I suggested, the deduction 'shall only stand to be quantified if the contractor is judged liable for the default.' I got the wording through.

Fast Forward a few weeks and one of our subsidiaries were told that a mammoth deduction was heading their way for delay and disruption. I wrote to the lawyers reminding them of the new contract wording agreed and that:

• recent case law had suggested that an individual could not define their own Bona Fides, it had to be an independent third party, like a judge, and,
• judges were very jealous of the term 'judged liable' and case law had established that this was the unique bailiwick of the courts.

The lawyers sought out a QC and discovered that she was of the same mind as me and the the court. Of the same mind as my Judge dinner companion, months before.

The Balance of Benefits and Burdens

It is tempting, especially in times of economic turmoil, to exploit contractual relationships and try to throw inappropriate risk onto the opposing party. Please, don't do it.

Of course you can do so if you want to keep me and many other consultants busy until we shuffle off this mortal coil, but otherwise don't.

Standard form contracts are available in almost all arenas now, JCT & NEC dominate construction and infrastructure but there are a plethora of great contracts for M&E, Process, Nuclear, Offshore, Marine and Shipping. Use them wisely and don't amend them until they are unrecognisable.

Recognise the value of Standard Form Contracts

I was briefly on the Joint Contracts Tribunal, representing a panoply of sub contractors in CASEC, and we worked hard with the client side to keep terms fair and balanced.

Then the lawyers drafted them to ensure that they complied with the various construction acts, consumer protection laws, defects legislation, health and safety rules, duty of care obligations and all other criminal and civil statutes.

If you amend without that wealth of legal knowledge you may contravene the law or cause a conflict between clauses, thus invalidating the terms you wished to rely upon.

In the last thirty years thousands of construction and legal professional have heard me lecture on this topic and regardless of which side I was on I always said the same, protection from disputes lies within the bounds of reasonableness.

Conclusion

Life is full of challenges, great and small, and we need to face them all with good humour and optimism. We cannot afford to blight our lives, and those of others by drafting contentious, or sneaky, terms that will cause Ill feeling and possibly result in disastrous litigation or arbitration.

Resolving disputes can cost millions, avoiding the obvious ones is free.

Jeffery Whitfield LLB FRICS MCIArb is a testifying Expert Witness and a Director at Rimkus.