Changes in the liabilities and concerns of the construction professions at the turn of the 21st century

The 1989 Bishop report, which crystallised amorphous perceptions of increasingly unreasonable liabilities and insurance burdens upon construction professionals, set out a specific agenda of issues for the attention of the government, professional bodies, clients, insurers and brokers. However, exploratory indicator interviews over a decade later revealed continuing fears and uncertainties in the professions which, this thesis argues, stem from the conflation of a wider number of concerns and no longer from the four principal issues identified as impacting directly upon them. There has, in fact, been progressive relief on those issues, but this has been modified by the rise of a countervailing tendency of apprehension from the 1990s in the wake of several reports which have revealed the erosion of client confidence in a traditional role of architects and engineers because of their perceived inability to manage and control the fundamental requirements of costs and time. The thesis considers the general erosion of self-regulation and the difficulties of architects in coming to terms with a statutory regulator under the 1997 Act, as well as the continuing problems of liability for professionals where their supervisory role overlaps with that for workmanship. It then critically examines the extent to which the first four issues have been resolved by now, namely limitation periods, collateral warranties, joint and several liability and contribution, and the problems of insurance. The 1993/94 Latham reports identified considerable criticism of construction professionals within the industry and among clients. It is submitted that there has been insufficient appreciation of the contribution made to the erosion of client confidence by four other issues which impact indirectly upon those professionals. These are the uncertainties inherent from the current arrangements for drafting standard forms of contract, from payment disputes between the contractor and the sub-contractor and from shortcomings in the various methods of resolving contractual disputes, the last of which finally led to the intervention of Parliament with the introduction of a novel and controversial statutory right of adjudication which undoubtedly relegated the "design" professions to a secondary role. Changes affecting the professions have not been confined to legislation. By April 1999 Lord Woolf s report and the "pre-action protocols" under the CPR 1998 had replaced an adversarial culture of trial by ambush with the concept of "cards on the table". The most influential overall change has been the growing demand for transparency in all transactions, extending beyond adjudication and the construction industry. The notion of what amounts to a conflict of interest has changed over the 20th century and even provoked questions on the provision of an ethical dimension to construction in the 21st. After some empirical work on the issue of adjudication, some conclusions on the future of the professions are presented and the potential for legal reform considered. The law is stated as at 31 May 2003.