Friday, July 12, 2019
The National Children’s Hospital, the Cork Event Centre, Páirc Uí Chaoimh are all unfortunate bedfellows in the public mindset, but will the public ever get to the bottom of the full scale of the issues and disputes that led to these cost overruns? Unfortunately given the current legal structures around construction disputes it seems highly unlikely.
As any lawyer who is asked to advise on a construction dispute will know, a client will inevitably enquire whether there are any precedent cases or decisions that will assist their side of the argument or allow them to predict the outcome. The request can be hard to address at times for the simple reason that construction dispute decisions (whether arbitrator’s awards or adjudicator’s decisions) are generally hard to come by. Furthermore, unlike in the UK, a dedicated Technology and Construction Court – a specialised division of the High Court – is sadly lacking in Ireland.
The cause of this lack of precedents arises from the fact that construction disputes, by their nature, are governed by contractual relationships. The parties to a construction contract have already signed up to preordained dispute resolution procedures which inevitably are cloaked by well-constructed confidentiality clauses. It is of course in the immediate interest of the parties involved to ensure that such disputes are resolved in private – understandably, nobody wants to air their dirty laundry in public.
However, the interests of the parties, although it might not be evident at the time, would often be better served if there was a system of recording the resolution of such disputes, with sanitised details being disclosed where necessary. The benefits of such a system are numerous –
Developments in other areas of the Irish legal system
Despite legitimate and compelling reasons for not making certain aspects and details of public works construction disputes freely available, it remains the case that construction law in Ireland is lagging behind the developments made in other areas of Irish law as regards transparency and accessibility.
One of Ireland’s most accomplished judges, Mr Justice Ronan Keane once commented that:
“Justice must be administered in public, not in order to satisfy the merely prurient or mindlessly inquisitive, but because, if it were not, an essential feature of a truly democratic society would be missing. […] The most benign climate for the growth of corruption and abuse of powers, whether by the judiciary or members of the legal profession, is one of secrecy.”
In recent years, the Irish legal system has attempted to rid itself of its perception of conservatism and stagnation, for example, earlier this year, the Supreme Court published its first-ever Annual Report documenting its work in a detailed but user-friendly format. The report indicates a commitment by Ireland’s highest court to greater transparency and a willingness to take active steps towards accessibility and social engagement. Indeed, the Chief Justice, Mr Justice Frank Clarke, has often spoken about the need for modernisation of the Courts.
In recent years, the media has also been championing, with some success, the concept of ‘open justice’ which supports Mr Justice Keane’s view that the media is the eyes and ears of the public in court. In the UK, there is a Crown Prosecution Service (CPS) protocol for the provision of information to the media during criminal trials which has resulted in far greater levels of public access to legal proceedings and court evidence, such as CCTV footage and police interview recordings.
Closer to home, the relatively recent access granted to the Irish media to the family law courts has enabled unprecedented coverage of a vital and incredibly important area of law that was once strictly administered “in camera” or in private. Nowadays bona fide members of the press can attend family courts and report on proceedings, on the strict understanding that no names, addresses or any identifying information is published.
In a similar vein, the provisions of the Freedom of Information Act 2014 have been effectively used by both members of the public and media to access information held by public bodies. Furthermore, the Labour Court, for example, routinely publishes decisions that have had parties’ details anonymised. The publication of such decisions provides invaluable precedents for both lawyers and clients alike.
Pathway to progress
While it may have gone largely unnoticed to the wider public, the Construction Contracts Act 2013 was a seminal piece of legislation in that it sought to protect many within the construction industry, particularly subcontractors subjected to a ‘pay when paid’ policy by larger contractors – a problematic policy when a larger contractor goes into liquidation. The 2013 Act also provided for a system of payment dispute adjudication to exist in addition to any other dispute resolution mechanism arising under a construction contract, such as conciliation, mediation or arbitration.
While there does not appear to be any significant appetite for it, a system of mandatory reporting of construction dispute decisions could be introduced by legislation. The 2013 Act could be the vehicle for change in this instance. Such reporting would allow for decisions of adjudicators appointed under the Act to be published in anonymised form.
A further action that could be taken is to include a mandatory reporting requirement in the suite of public works contracts. More than 10 years ago, the Government introduced a suite of public works contracts which public bodies are obliged to use for any publically funded construction projects. These have been updated many times and it would not be difficult to include a requirement of mandatory reporting, which would benefit the taxpayer through greater understanding of the issues arising in construction disputes.
The benefits for alternative dispute resolution (over the prosecution of cases in public in the Courts) are many: time, speed, efficiency, confidentiality, specialised knowledge, no long court lists and waiting times. However there is a public interest in having construction disputes of a public nature available to both those engaged in the construction industry and the general public. Transparency and consistency in the operation of law are key elements of any proper functioning and democratic society, hopefully further improvements can be made in the construction law sphere so that the choirs of precedents can sing in one chorus.
Article written with the assistance of Darragh Bollard, Trainee Solicitor.
 Keane J. (as he then was) in Irish Times v Ireland  1 IR 359.