Last week [this article is dated 25 October 2006] I received this email from the Society of Construction Law to its members:
Some of you may have seen the following entry in The Times on Tuesday 17th October.
It was thought that some members will have known Ian and perhaps also missed this notice.
Ian Duncan passed away on 1st August 2006. A Thanksgiving Service will be held for his life and work on Monday 13th November 2006 at Temple Church, Temple, London EC4 at 5.45 pm"
I sensed in this message a hint of embarrassment that it should have taken the Society two and a half months to bring to its members’ notice the passing of that giant of construction law which Ian Duncan Wallace QC, the learned editor of Hudson’s Building and Engineering Contracts, assuredly was. Though (I believe) he retired some time ago, did members of his family not swiftly notify his former chambers of his death, and did his erstwhile colleagues not rush to impart the news to their construction law associates, so that one might have expected it to have reached the Society of Construction Law within days if not hours? Apparently not.
Before I continue, you might have noticed that I have refrained from referring to the deceased otherwise than by his full name. There is a reason for this which, once I have explained it, will liberate my pen.
I was and remain confused by the fact that the notice in The Times appears to give his surname as Wallace and his forenames as Ian Duncan, while the Society’s email refers to him as Ian. The fact is that he was known to the construction law world as “Duncan Wallace”, and I always understood that Duncan was not a second forename by which he was known (as I am known by my second forename) but was the first part of his surname. If Duncan had been his principal forename, why did the Society call him “Ian”? And if his surname was Duncan Wallace, why is the Times notice – inserted by his former chambers - titled “Wallace” instead of “Duncan Wallace”? (On further thought, I suspect it was a misprint.)
Be all that as it may (and I can almost hear your thoughts regarding the triviality and pedantry of my discourse), though this humble practitioner was almost certainly unknown to Duncan Wallace he did have a decisive effect upon my career.
Between 1974 and the mid-1980s I was Assistant Borough Solicitor with Islington Council. My responsibilties included oversight of the Legal Department’s Contracts Section, whose staple diet was the JCT 63 form of building contract. At that time I wasn’t all that familiar with building contracts, but there came into my hands a copy of an article written by Ian Duncan Wallace in one of the law journals. The article was about JCT 63, which the author demonstrated, using numerous examples, to be heavily weighted against employers and in favour of contractors.
At this point I should mention Duncan Wallace’s writing style, which I became familiar with over the years. Not for him a delicate raising of the eyebrows to suggest moderate surprise, nor even the rapier thrust of fierce debate. Duncan Wallace’s method was the hammer blow, or rather a succession of hammer blows raining down on his luckless victim. His prose was an equally blunt instrument: on a good day you could more or less understand what he was saying; on a bad day he could be thoroughly obscure. But however impenetrable his words, there was never any mistaking the object and vigour of his attack.
JCT building contract forms and their forerunner, the RIBA form of contract, were created and developed first by the RIBA and later by the JCT or Joint Contracts Tribunal, and they have dominated the field of building (though not engineering) contracts since the early years of the twentieth century. Unlike the Holy Roman Empire (mentioned elsewhere in this blog), the JCT was and is joint, and was and is to do with contracts. But just as the Holy Roman Empire was no empire, so the Joint Contracts Tribunal was (and is) no tribunal. What it was (and despite incorporation more or less remains today) is a committee composed of representatives of employers (property owners, developers and local authorities), construction companies and main contractors, tradesmen and subcontractors, and neutrals (architects, quantity surveyors and engineers).
During the 1960s and 1970s the JCT had come under the domination of the contractors’ side, and I have no doubt that this was due to weakness and inertia on the part of the employers’ side and their unwillingness to invest time and resources in fighting their corner. As I later discovered when a member of a JCT working party, the contractors had the power to make things happen, and the subcontractors had the power to stop things happening.
Fast forward to 1979. The JCT is planning a new edition of its flagship standard form of building contract, which will become known as JCT 80. The Association of Metropolitan Authorities, one of the local authority representative bodies on the JCT, sends a circular to its member authorities inviting comments on and criticisms of JCT 63.
The circular lands on my desk, perhaps (I cannot now remember) with a request or instruction to respond to it. At all events, I am ready and willing to respond. I have long been in possession of, and have read and absorbed, a photocopy of Ian Duncan Wallace’s 1973 article (and how I wish I had taken a copy with me when I left the Council’s service in 1990). I now compose a lengthy reply to the AMA’s circular, paraphrasing copiously from Duncan Wallace’s article, clause by clause, hammer blow by hammer blow.
My letter is well received at the AMA. The then Borough Solicitor and I are invited to join the Contracts Panel which the AMA and GLC have set up to advise their representatives on the JCT. I find myself serving on the Contracts Panel during most of the 1980s. Local government is at last using its strength to improve the contractual position of employers, and I am part of that effort.
In 1982 I am appointed as the Association’s representative on the JCT’s Management Contracting Working Party, where I labour mightily to help in producing the JCT form of management contract. I address the JCT, on the management contract, in a speech which asserts the rights of the employer and occasions no little controversy among the members of that august club. Five years on, in 1987, the working party’s efforts are rewarded by the publication of the JCT management contract, a fast-track procurement method still being successfully used to this day.
And for me it all began with that piece by Ian Duncan Wallace. I don’t know whether, if I had not read that article, which made such a great impression on me, I would have become as involved as I did in construction law, or whether I would have acquired the theoretical knowledge which later enabled me to obtain employment in private practice and to translate that knowledge into practice.
Obituaries and eulogies of Ian Duncan Wallace will rightly emphasise his great contributions as a barrister and a writer to the knowledge and practice of construction law. To which I would add a mention of his iconoclasm, his championing of the just against the unjust, of the fair against the unfair. For it was undoubtedly his righteous indignation at the injustice and unfairness of the JCT contracts in 1973 which set me on my decades-long career as a construction lawyer.