Book Reviews
Construction Contracts:
Law and Practice
Richard Wilmot-Smith QC
Oxford University Press (Second Edition, 2010)
ISBN 9780199579594
Price 235.00 ; 752 pages (hardback)
Reviewed by Elizabeth Slattery, Corbett & Co International Construction Lawyers Ltd, London
T he second edition of Richard Wilmot-
Smiths highly readable guide
Construction Contracts Law and Practice is
a welcome addition to the library of those
who practise construction law. The second
edition includes not only relevant new case
law since the first edition was published in
2006 but also covers the prospective legislative
amendments and repeals introduced by the
Local Democracy, Economic Development
and Construction Act 2009 (the 2009 Act).
There is some reorganisation of the later
chapters and a new chapter on partnering.
Throughout this book, the author also
manages to retain a practical and problem-
solving approach.
Broadly, the book retains the same
structure as the first edition. Part I on
contract formation and interpretation
contains a fully updated and helpful
exposition of the current law including
commentary on the recent affirmation by
the House of Lords of the long-held rule that
excludes evidence of pre-contractual
negotiations when interpreting the terms of
a contract (Chartbrook Ltd v Persimmon Homes
Ltd and Others [2009] UKHL 38), and also on
the criteria for the inclusion of an implied
term in a contract, in the case of Attorney
General of Belize & Others v Belize Telecom Ltd
and Another [2009] UKPC 11.
Part V on claims contains a useful overview
of several common yet complex contractual
issues; for example the effect of concurrent
causes of delay and causation on the grant of
an extension of time and recovery of loss and
expense. The author concludes that apart
from the case of Henry Boot Construction (UK)
Ltd v Malmaison Hotel (Manchester) Ltd [1999]
All ER 118 there is still very little authority on
this topic. It is surprising however that there
is no commentary on the interesting 2007
decision of the Scottish Court of Session in
City Inn Ltd v Shepherd Construction Ltd [2007]
Construction Law International Volume 6 Issue 1 March 2011 33
CSOH 190. Furthermore, at the time of this
review, the companion website does not yet
address the recent unsuccessful appeal in
that case by City Inn Ltd to the Scottish Court
of Appeal, which, although not binding in
England, would be very persuasive authority.
Part VI is entitled Procurement,
Competition in the European Community
and Partnering. In the new section on
partnering there is an explanation of the
background to and the concepts and
characteristics of partnering. The recent
cases on public procurement and the
operation of framework agreements (Henry
Bros (Magherafelt) Ltd and others v Department of
Education for Northern Ireland (No2) [2008]
NIQB 105 and McLaughlin & Harvey Ltd v
Department of Finance and Personnel (No2)
[2008]NIQB 91) are also covered here.
The final part (VII), on disputes, begins
with a run-through of the practical aspects
of commencing a mediation, starting with
the appointment of the mediator and the
likely sequence of plenary session,
submissions, meetings and so on, through to
the costs implications of declining to mediate
and recovery of the costs of the mediation
itself. The chapter on arbitration contains an
interesting paragraph on the concerns held
by some as to the quality of the individuals
often nominated by UK nominating bodies
and the importance of training. Finally, for
the practitioner in international construction
contracts, there is a short summary of the
features and procedure of arbitration under
the rules of the ICC International Court of
Arbitration.
Statutory adjudication under the Housing
Grants, Construction and Regeneration Act
1996 is a major chapter, to be read alongside
Appendix 3 which sets out the prospective
changes to the legislation contained in the
2009 Act. There is a detailed explanation of
law and procedure, starting with the
Book Reviews
adjudication notice, the crystallisation of a
dispute, subsequent procedural steps including
challenges to jurisdiction and enforcement of
the decision. Finally it is important to mention
the second edition website www.oup.com/
lawonline/wilmotsmith which now contains
details of the final amendments to the
legislation together with information on the
date on which they will come into force and a
short commentary on the provisions.
Hudsons Building and
Engineering Contracts
Atkin Chambers (edited by Nicholas Denys, Mark Raeside,
Robert Clay et al)
Sweet & Maxwell (12th edition, December 2010)
ISBN: 9781847032041
Price: 350.00; 1484 pages (hardback)
Reviewed by Wayne Jocic, Clayton Utz, Melbourne
B y its 11th edition in 1995, Hudsons was a
behemoth in both size and influence. It
stretched to 1706 pages, excluding tables of
authorities and indexes, and was accompanied
by a 323-page supplement published in 2004.
These volumes weigh in a little shy of 4 kg.
The physical dimensions understate the
influence of the text. It is indispensable for
practitioners, and has helped to shape the
common law in several jurisdictions. To take a
prominent example, Lord Goff and Lord
Hoffman noted their debt to the work of Ian
Duncan Wallace, the author of the 8th, 9th, 10th
and 11th editions, in the significant decision in
Beaufort Developments (NI) Ltd v Gilbert-Ash NI Ltd
[1999]1AC266. (Presumably, they were relying
on sections 6.0636.064 of the 11th edition, at
least in part.) Reliance on Hudsons stretches
throughout the common law world. To take a
random but representative example, the New
South Wales Court of Appeal in Australia, nearly
17,000km from London, cited Hudsons on 21
September 2010 and did so again the very
next day in an unrelated case.
The construction law world has been greatly
looking forward to the 12th edition of Hudsons,
but the anticipation is perhaps tempered by
trepidation given that this will be the first
34 Construction Law International Volume 6 Issue 1 March 2011
In conclusion, the second edition certainly
meets the authors objective as he has stated
in his preface; namely that it should update
and improve upon the first and to provide an
exposition of the modern law in a form
which is accessible and relevant.
Elizabeth Slattery is a Co-Editor of CLInt and a
Consultant at Corbett & Co International Construction
Lawyers Ltd, London
edition produced after the passing of Duncan
Wallace in 2006. Could a book written by a
committee (consisting of no fewer than 29
members of Atkin Chambers) really emulate
the work of the brilliantly independent-minded
author of the previous editions?
The first encounter with the new edition
reveals a cover, colour and format which are
remarkably similar to the 11th edition. On
further investigation, however, the 12th edition
is a book quite different from its predecessors.
On the one hand, it lacks some of the charisma
of the editions edited by Duncan Wallace; on
the other, it is shorter, better organised and
more circumspect in its commentary on the
law. In short, it is considerably more accessible.
The changes made in the 12th edition
deserve close study and the book will doubtless
be the subject of many detailed reviews. This
brief review concentrates on three aspects of
the edition that make it more valuable than
ever to construction lawyers outside the UK.
First, it is easier to navigate. The editors have
consolidated the book into a single volume of
1484 pages (excluding the index and tables of
authorities). This is a great improvement on the
structure of the 11th edition, with its two volumes
and supplement. Moreover, the 18 chapters of
 the 11th edition have become 11 chapters in the
12th edition. Surprisingly, this makes the table
of contents easier to follow. Headings and
subheadings are clear and they presuppose less
knowledge than the 11th edition, in which case
names and maxims frequently formed part of
the headings. Another welcome change is the
shift away from idiosyncratic terminology such
as the symbol A/E for Architect or Engineer
employed by the Employer as both Designer
and Certifier (page 4 of the 12th edition).
These changes make the book much more
useable for occasional users.
Small improvements elsewhere are a further
help, and it is hoped that this process of
simplification will continue in future editions.
For example, the table of authorities is sensibly
divided by jurisdiction and is accompanied by a
more comprehensive table of abbreviations.
On the other hand, the use of Roman numerals
from i to cxlv (rather, say, than A1 to A145) in
numbering the introductory material will test
many readers. Similarly, the index is shorter
and the sub-items are clearer, but some obvious
issues are not well indexed. To take one
example, the 11th edition was criticised for
failing to index the Hudson formula for
overheads (Philip Davenport, Book Review
Hudsons Building and Engineering Contracts
(1995) 43 Australian Construction Law Newsletter
8, at 9) except under Damages. The response
in the 12th edition was not to index the Hudson
and Eichleay formulae directly, but to remove
the reference in the damages item.
The second aspect of the 12th edition that
readers outside the UK should appreciate is the
continued breadth of coverage of law from
other jurisdictions. The editors rightly observe
that one of Duncan Wallaces strengths was his
knowledge of law across the common law world.
The 12th edition continues in this direction.
Lawyers in jurisdictions on which the work
touches may feel the temptation to hunt for
errors. (From an Australian perspective, in the
four-page span from p155158 that considers
aspects of recovery in negligence for pure
economic loss: Brooking JA is rendered
Brookings JA; Robt is rendered Robert in the of reform. The result is a book that is better
Robt Jones (363 Adelaide Street) case and there is a
mix of court-authorised and medium-neutral
citations.) While this temptation may be
common, it misunderstands the character of
the text. It does not purport to provide universal
and detailed coverage of the law in any
jurisdiction other than the UK. What it does,
and does superbly, is draw on the law in other
jurisdictions to fill gaps in the patchwork of
cases, to point to alternative positions and
Construction Law International Volume 6 Issue 1 March 2011 35
otherwise to expose anomalous and important
foreign judgments.
The treatment of tender process issues is one
of several good examples. The 12th edition
cites cases from Australia, Canada, New
Zealand and the UK, and considers the
implications of regulation in the EU. Rather
than simply referring to the foreign cases as
curiosities, the editors attempt to draw together
disparate strands of law to divine commonalities
in approaches.
The final aspect of the 12th edition of benefit
to readers outside the UK is its more
circumspect tone. Duncan Wallace was never
shy in expressing his views on the law. In the
11th edition, for instance, he eagerly lists, in
chronological order, those decisions that he
found difficult if not in some cases impossible
to explain or justify. (See page xvii.) This
approach is terribly endearing for those
familiar with the decisions. However, for those
seeking occasional guidance from an
authoritative text, the more expositive
approach of the 12th edition will be welcome.
The 12th edition is by no means bland,
however, and it does venture opinions. These
are matters of degree. All the same, the 12th
edition is less forthright, and thus perhaps less
speculative, than the 11th. This is most obvious
in the newest areas of the book, such as the
chapter on statutory adjudication.
Readers familiar with previous versions of
Hudsons may be concerned by some of the
changes in structure and especially in tone in
the 12th edition. We would do well to remember
Duncan Wallaces own description of the 6th
and 7th editions of the 1930s, which he found
unadventurous. They were for him pot boilers
designed to keep the title alive and up-to-date,
no doubt for the mutual benefit of their
editors chambers and of Sweet & Maxwell as
the books law publishers. (I N D Wallace,
Alfred Hudson QC A Man of What Parts?
(2005) 21 Construction Law Journal 197, 197.)
The 12th edition is not a book Duncan
Wallace would have written, but it is hard to
believe he would not have approved of its spirit
structured, that is balanced in its opinions, and
yet which retains enough of Duncan Wallaces
charisma to remain a fascination for
construction lawyers. Ultimately, this is a more
useful book for lawyers outside the UK.
Wayne Jocic is a lawyer at Clayton Utz, Melbourne,
Australia, and a tutor at the Melbourne Law School in
The University of Melbourne.