The great actor is dead, the star of the Vikings, the Heroes of Telemark and many, many more blockbuster films. But for me, the late, great Kirk Douglas was and will always be the man who, as Spartacus, lead a slave revolt for freedom and, in defeat, became far more famous than his victorious adversary, Marcus Licinius Crassus. He also battled hand-to-hand with Tony Curtis, something the real Spartacus did not do. A great film scene, I recommend it.
What does this have to do with Construction Law? A good question but one that is easily answered. Only last Tuesday (4th of February) I was sitting in the fine (albeit slightly fading) surrounding of the National Liberal Club listening to two very eminent speakers discuss the idea of 'good faith' in construction contracts.
The first speaker delved into case law, old and new, explaining how the courts have dealt with good faith in 'relational' contracts. He was very persuasive and I know that I must look afresh at contracts in which express clauses require the parties to act in good faith or, to use the language of clause 10.1 of the NEC forms, a "spirit of mutual trust and co-operation". I cannot advise my clients that these words mean nothing although they still don't require a group hug at the weekly project meeting.
The subsequent presentation on "classical" and "neo-classical" contract theory was interesting from an intellectual standpoint and my conclusion was that my 25 year long marriage was a neo-classical contact, i.e. subject to change as the years pass by. Whether my wife would agree with this legal analysis is something I must ask her one day.
If one is confused by all of this, then don't panic. On a day-to-day basis nothing changes: Funders, Developers/Employers, Contractors, Sub-contractors and Consultants will each continue to retain their own legitimate, commercial interests, i.e. they will each want to maximise their share of the profit and limit their share of the risk. None of this will be resolved through the application of 'good faith'. What you might find is that where your contract contains an express requirement to act in 'good faith', the courts might take a different approach to interpreting other provisions dealing with the notification of delays, the provision of design information, the issue of certificates etc. Well, that is the theory.
There has been much talk of the need to change the adversarial culture in construction in order to deliver projects on time, to budget and to quality. Over the past 25 plus years, I have sat in lectures and workshops on 'partnering' and, more recently, collaborative working. I have read and negotiated partnering contracts with 'good faith' provisions, 'open book' accounting, 'pain/gain' schedules, 'we don't sue each other' provisions and many more. However, none of these have worked to change the culture and I am not convinced a construction contract can do this even if one inserts the words, "the parties are to act in 'good faith' and/or in a spirit of mutual trust and co-operation".
The key to solving the adversarial culture would seem to be a shared, common purpose. One person, at last Tuesday's talk, observed that during WWII the adversarial culture on building sites disappeared. This may be very true but I am not sure a perpetual state of war as in George Orwell's book 1984 is the solution.
This, therefore, brings me back to Spartacus and the 1960 film. I, like many others, will be popping in the DVD (old technology is more reliable) and enjoying Spartacus' fight for freedom. I know the film's ending but this time I will raise a toast to the captured slaves who, in a true illustration of common purpose and collaborative working, stand up one by one and proclaim, "I'm Spartacus".
Kirk Douglas, Hollywood legend and star of Spartacus, dies aged 103 Square-jawed star of Paths of Glory and Lust For Life leaves legacy ‘that will endure for generations’, says son Michael Douglas