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September 2017

A cosy relationship or a contract?

By | Problem Solved

The Problem

I have been working on a large building site for the past 6 months as a contractor.  The site has been split into 5 phases, and I have almost finished phase 2, and have submitted my tender for the next 3 phases.

I have done a few small jobs on phase 3 which I have been paid for at my tendered rates.  I have spoken to the contracts manager about a written contract for the remainder of phase 3 and phases 4 and 5, and he replied:  “Just crack on with it”.  But I have my reservations about doing this without a contract or at least a letter of intent.

I have had no problem with payment in the past from this company, and don’t expect any problems in the future.  I would like some advice about how to tackle the situation, as I do not want to upset what has so far been a good working relationship, and where I stand health and safety wise working on a phase of the site that I have no contract for.

Thanks in advance for your help.

Malcolm

Michael’s Response

Hello Malcolm.  Although I understand that you do not wish to upset a good client that has, no doubt, provided a good source of income, it is vital that you ensure you have a written contract in place before you start your next phases.

What you are essentially doing when you record the agreement in writing with your client, is taking out insurance on the contract.  No matter how big or small a construction project may be, the majority of contracts, once signed, will be stored and never the see the light of day again.  However, when there is a dispute, the second thing that a company will do (the first being to instruct its lawyers!), is to open the bottom drawer of the filing cabinet and take out the contract that has been laying there since the start of the project.

Letter of Intent

As regards to the so-called letters of intent, I am definitely not a fan!  A true letter of intent only expresses a party’s intention to enter into a contract at a future date.  Yet the number of letters I have seen that are headed ‘Letter of Intent’, are in fact binding agreements.  I understand that on some projects, there is a need to start the works very quickly, meaning that a contractor needs to be appointed on at least the work that is at the early stages of the programme. Where this happens, a combined Early Engagement Letter and Letter of Intent can be drafted, which allows a contractor to commence part of the works under a contract, whilst waiting for the main works contract to be drafted out.

Health & Safety

Regarding health and safety, although no doubt this will form part of your written contract, there will still be strict requirements that you will need to observe, which are implemented by statute, for example the CDM Regulations 2015.  As an employer you will have duties that are also governed by statute, for example to provide adequate information, instruction, training and supervision to enable your operatives to carry out their work in a safe manner.  Even self-employed persons have duties under the law in relation to their own health and safety, to ensure their work does not put others at risk.

The UK’s Judges are just as guilty of overreach as those the European Court of Justice.

By | news

Author: John Cato, Solicitor-Advocate

I have just read some complete nonsense in one of our national newspapers that simply cannot remain unchallenged – even more so because it was written by Jeremy Warner, one of the country’s most distinguished Journalists, in The Daily Telegraph on the 25 August 2017.

He highlights his article with the comment: –

The UK’s Judges are just as guilty of overreach as those at the European Court of Justice.

He then proceeds through a series of non-sequiturs (and even those are only half baked) to the most astonishing conclusion: –

Judges have become much too powerful; they should be dethroned and made more democratically accountable.

The British Constitution (that “thing” which organises and distributes and regulates the power of the state) is “unwritten” in the UK; evolving over a long period of time into a stable democratic structure, referencing some documents – such as the famous Magna Carta – but more fixed in our minds than any legislative imprimatur.

You may remember from your days at school there are three pillars holding up this constitution: the legislature – Parliament (which makes the rules); the executive, which consists of the institutions and people promulgating and implementing those laws; and thirdly, the judiciary, who independently rule on the frictions created.

Considering human moral frailty, would it not be dangerous for the Judges to be beholden to any of the parties involved in the disputes which come before them – including the citizen?

In order to make the system function, there are, of course, various overlaps and checks and balances, but a judiciary, accountable to the people, in any more than a moral sense, which is what Mr Warner appears to be proposing, should not be one of them.

Allow me to propose a simple test: imagine the words “the Judges should be dethroned and made more democratically accountable…” came out of the mouth of Adolf Hitler.

That might give us pause for thought.

For example: would we want the judges to make sure their decisions steer clear of making them “enemies of the people” – as they were called by the Daily Mail after ruling against the government’s exercise of prerogative power to trigger Brexit?

Of course not: they must make their decisions in the public fora  and  subject to those pressures, but their ability to function independently must be carefully guarded, for our own safety’s sake.

A highly trained and powerful judiciary, with the freedom to say yes or no to any application before them, in accordance with their conscientious and diligent interpretation of the Constitution and Rule of Law we all subscribe to – together with them – is a central tenet of our free and liberal (I use the word non-politically) democracy.

Parts of the world where the Rule of Law does not hold good (regions of Northern Nigeria where Boko Haram rule the roost springs to mind) are always noticeable by the lack of an independent judiciary.

You only have to look out at the world for a few moments to know that if you cut down the power of independent judges, you and your family would not be able to stand up safely in the winds that would then blow.

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