Construction Law 1 – LLM042
First Diet Coursework Assignment 2018–2019
Students are required to attempt the legal problem question and write a word-processed essay on the essay topic below. The weighting as between the legal problem question and the essay is 50:50.
The following guidelines should be strictly adhered to:
1. All propositions of law referred to in the legal problem question – see section A of the assignment below – should be supported by an appropriate reference to a case or statute or, in the case of a reference to a standard form of building contract such as for example the JCT Standard Building Contract with Quantities 2016, by an appropriate reference to the relevant contract.
2. The word limits for each component of the assignment appear at the end of the relevant section of the assignment. These limits should be adhered to, otherwise the student will be penalised. Each submission should include a word count.
3. Footnotes should be included in the essay. A bibliography should appear at the end of the essay. The bibliography should contain all relevant material consulted by the student, whether referred to in footnotes or not and material in the bibliography should be arranged under the following headings, where applicable:
Words in footnotes and bibliography should not be included when taking into account the essay word count.
4. Footnotes must be used for referencing and further reading only and should contain as little text as possible.
5. The completed coursework assignment must be submitted prior to the submission deadline (see below), by submission via an electronic drop-box set up in the study area for the Construction Law 1 module in the RGU Moodle online campus. Note that one submission only is permitted to avoid multiple submissions (where a later submission by a student is stated or intended to supersede an earlier one). Students must be satisfied that the version of the completed coursework is the absolutely final version prior to submission. Completed coursework submissions should not under any circumstances be directly emailed to the module leader Dr Hamish Ross. Dr Ross’s email facility at RGU is not resourced to handle emails with large attachments. Accordingly, Dr Ross will have no alternative but to delete such courseworks on arrival without reading them.
6. The completed coursework assignment must be submitted using the template (a Microsoft Word document) provided in the study area for the Construction Law 1 module in the RGU Moodle online campus. The template should be completed in full prior to submission. Use of the template is intended to ensure that the coursework submission is contained in a single document and contains all relevant student details. This will make submission via the electronic drop-box simpler.
7. The completed coursework assignment must be submitted by the following deadline:
Friday 7 December 2018 at 1pm, UK time
Extensions to this deadline may exceptionally be granted. Applications for an extension should be sent, with full reasons, to the course leader, Dr Joseph Mante at firstname.lastname@example.org and copied to the postgraduate administrator, Cherie Connon at email@example.com.
Any extensions should be applied for as early as possible and will be considered at the sole discretion of the course leader. Applications close to the deadline should be avoided wherever possible, and unless made at the earliest opportunity, are likely to be refused. Please note that pressure of work, unless exceptional and verified, will not be accepted as a valid extension justification.
Failure to submit the completed coursework assignment properly or by the stated submission deadline will result in the student’s scoring zero for the assignment.
8. Any deviation from the above guidelines will be penalised, either by a zero score or a lower mark.
9. We will be enforcing the rules on plagiarism strictly.
Plagiarism is the practice of presenting the thoughts, writings or other output of another or others as original, without acknowledgement of their source(s). All material used to support a piece of work, whether a printed publication or from electronic media, should be appropriately identified and referenced and should not normally be copied directly unless as an acknowledged quote. Text translated into the words of the individual student should in all cases acknowledge the source. For further information, please see:
30 and http://bit.ly/rgulawacademichonesty
Before submitting an assignment, you should check through it and ensure that:
§ all material identified as originally from a previously published source has been properly attributed by the inclusion of an appropriate citation in the text;
§ direct quotations are marked as such (using “quotation marks” at the beginning and end of the selected text), and full details of the references and legal citations have been included (as per OSCOLA guidance).
Please avoid the practice of quoting chunks of texts from sources and simply referencing them. You will be given limited (if any) credit for such practice as such texts will be reflecting other persons’ original ideas, not yours.
Section A and Section B are each worth 50% of the entire assignment.
Section A Legal Problem
Pandemonium Projects Limited (‘Pandemonium’) is a property development company that lives ‘in the fast lane’. There are usually too many projects going on at any one time and the company often finds itself drowning: unable to cope with the pressure of keeping so many plates spinning in the air at any one time. Pandemonium’s senior executives usually try to compensate for this by employing contractors with a fearsome reputation for getting the job done properly and on time.
So, Pandemonium employs QuantumLeap Construction Partnership LLP (‘QuantumLeap’) to build a mixed retail and residential development not far from the centre of Canterbury in the southeast of England. QuantumLeap is content to be given this job as the contractor has had considerable experience of small projects like this going back many years and knows exactly how to assist developer clients who appear to be struggling with internal ‘pandemonium’ issues. The governing contract for the project is the JCT Standard Building Contract with Quantities 2016 (without amendments).
Not unexpectedly, the project is beset with problems from the outset. Pandemonium is unable to give QuantumLeap access to the site on the scheduled start date, citing planning problems. As the development is to be built quite close to the centre of historic Canterbury, conservation issues have arisen that Pandemonium had not factored into its forward planning and which its advisers had either overlooked, or had drawn to Pandemonium’s attention only for the advice to be trivialised or brushed under the carpet at the time.
Pending being given access to the site, QuantumLeap has no option but to ‘sit twiddling their thumbs’ (as QuantumLeap’s director of operations describes it).
Pandemonium finally allows QuantumLeap access to the site a full 12 weeks after the scheduled date of possession under the building contract. But before giving QuantumLeap possession of the site, Pandemonium requests an exchange of side letters (supplementary to the building contract) imposing a requirement that specialist stonework required by the planners (given that the site is in a conservation area) be installed by QuantumLeap and only QuantumLeap. The side letter mentions by name two master stonemasons employed by QuantumLeap: Arthur Hammer and Michael Chisel. In the side letter Pandemonium states that the company will be trusting QuantumLeap to get the work done properly (by deploying Hammer and Chisel on the job) and in a way that is fully compliant with the requirements of Canterbury’s planning authority.
By the time QuantumLeap takes possession of the site it is well into winter and QuantumLeap is forced to put the works on hold as the weather markedly deteriorates. Gale force winds and blizzards arrive with a vengeance, and this is followed by exceptionally heavy rain, all of which put the brakes on the project for a further week. When the works recommence, QuantumLeap is forced to hire in pumps to drain the flooded site – leading to yet more delay.
Several months after commencing the works, QuantumLeap gets round to tackling installation of the decorative stonework. QuantumLeap insists on sub-contracting this work as Arthur Hammer and Michael Chisel have been redeployed on a project in Northern Ireland. Pandemonium resists this on the ground that the terms of the side letter (to which QuantumLeap agreed) are very clear. QuantumLeap’s director of operations points out that if possession of the site had been given to QuantumLeap on the originally scheduled date, Hammer and Chisel would both have been available to carry out the required work.
Discuss the contractual implications of delay generally in this problem scenario; then carefully analyse the procedural steps under the JCT Standard Building Contract with Quantities 2016 which QuantumLeap should take with effect from the originally scheduled site possession date (and on the occasion of each relevant occurrence described in the problem scenario) in order to ensure that QuantumLeap is legally and contractually in a position to secure any necessary adjustments or extensions to the originally scheduled date for completion of the works. Additionally, describe the procedural steps to be taken under the contract by Pandemonium’s architect/contract administrator in response.
[WEIGHTING: 35% OF SECTION A LEGAL PROBLEM]
Consider the consequence or effect of the contractual arrangement made in the side letter between Pandemonium and QuantumLeap on the overall contract and advise QuantumLeap, by reference to appropriate and applicable case law whether, regardless of the terms of the side letter, the latter may lawfully, and as a matter of contractual or legal right, proceed to sub-contract the installation of specialist stonework to a sub-contractor.
[WEIGHTING: 20% OF SECTION A LEGAL PROBLEM]
Consider the hypothetical situation where, in the problem scenario, the contract is not as sophisticated as a published JCT contract but is instead a simple agreement put together by the parties who are non-lawyers (or even an exchange of letters of intent preliminary to a more formal arrangement that never materialises) that is silent on the consequences of delaying events that can be attributed to the employer (i.e. in the problem scenario, Pandemonium’s failure to give QuantumLeap access to the site on the originally specified possession date is specifically of relevance).
Explain and critically discuss how the common law prevention principle and (in the construction context) the related concept of time being deemed to be ‘at large’ might operate to provide QuantumLeap with a practical way forward at the same time as affording a possible remedy under the law of contract. (Note that this part of the problem relates only to time. Questions around use of specialist stonemasons, and sub-contracting, are not relevant here.)
[WEIGHTING: 45% OF SECTION A LEGAL PROBLEM]
[Note that an answer that attempts to apply contractual provisions or legal principles to the specific facts of the problem scenario will attract a higher mark than an answer that does not.]
Word limit for Section A Legal Problem: 2,000 words (plus or minus
Section B Essay Topic
In the recent past the use of contractor’s default insurance has become a familiar risk reallocation mechanism in the USA as an alternative to the use of more traditional performance bonds. Write a comparative piece (essay) critically evaluating the use of performance bonds (on one hand) and contractor’s default insurance (on the other) in the construction sector, in the context of the contractor/sub-contractor relationship:
Word limit for Section B Essay Topic: 1,750 words (plus or minus