Construction litigation may be challenging and, in its way, rewarding. It has to be said, though, it presents few opportunities for humour. Occasionally the transcript of the day's court proceedings raises the odd smile. When, for example, a spilt glass of water causes such confusion within the opposition's camp, with lawyers leaping in panic to rescue their papers and laptops from the deluge, that the opposing Queen's Counsel is obliged to interrupt his cross examination and observe, 'I shall pause there, your Honour, my learned friend appears to have been attacked by his junior'. Yes, as you can see, jokes are thin on the ground.
So when you come across a good one, you do tend to hang onto it. An old favourite is a cartoon in the style of Gary Larson's The Far Side. It depicts a primitive walled castle with turrets and battlements and groundsmen hard at work digging a trench. A character wearing a crown is having an animated conversation with a chap in a vest who is consulting a large piece of paper, a drawing perhaps. The caption reads 'Suddenly a heated exchange took place between the king and the moat contractor'. Closer inspection reveals that the moat is being constructed within the castle walls.
This encapsulates a familiar enough experience: it is usually accompanied by an unhappy combination of emotions, indignation and 'that sinking feeling'. I experienced both recently when inspecting my newly installed kitchen. The cabinets are crafted in the gothic style, with mdf sculpted into pointed arches, trimmed with tracery and painted with Farrow & Ball's best. But all this routing had left the surface rough to the touch, most noticeably on the protruding base plinth which already bore the scars of everyday family life: spilt coffee, squashed grapes and other unspeakable detritus. It was whilst trying to clear it all up that the awful truth dawned on me: the kitchen is not wipe-clean!
I had no more thought to include 'wipability' in the specification than the unfortunate king had thought to mention that the moat should be outside his castle. In the ensuing debate we would both have argued that it went without saying, it was obvious to anyone, just ask them. Which brings me to the legal content of this piece. These may not have been express terms of the contracts for moats or kitchens but they may still be terms, nonetheless, implied by the 'officious bystander' test.
Courts are reluctant to add words to existing contracts. The more time spent in negotiations and the more detailed the resulting agreement, the less likely the court is to find that the parties meant something more than they said. The courts cannot improve contracts whatever they may think of the mess the parties have got themselves into. In this respect the jct family of contracts has come in for a fair degree of judicial stick. In the early 1970s in Peak Construction v McKinney Foundations the House of Lords observed that if a prize were to be offered for the form of building contract which contained 'the most one-sided, obscurely and ineptly drafted clauses in the uk', that particular contract was in with a good chance, 'even if the riba form was among the competitors'.
Nevertheless, an unexpressed term can only be implied if the court finds that it must have been intended by the parties, not that they would have agreed to it, had it been suggested to them, but that it was a term that went without saying. This is where the 'officious bystander' comes in. In order to decide whether something is that obvious, the courts imagine the pre-contract negotiations being interrupted by an officious bystander who suggests that some express provision be included. If the parties were to respond, 'that's a good idea, we hadn't thought of it' the term fails. If, however, they were to dismiss him with a testy 'Oh, of course' then the term is in. Now, I would have thought that the king's prospects look good: but what about my kitchen?