THE 1990 BILL TOMPKINS MEMORIAL LECTURE
How fair are we in dispute resolution in
the construction industry?
by NORMAN ROYCE, FRIBA, PP.CIArb
THE Bill Tompkins memorial lecture was delivered on
I June 1990 to the Channel Islands Branch in Guernsey
where he had lived in retirement. The meeting was
chaired by Sir Charles Frossard FCIArb, Bailrff of
Guernsey. The lecturer is England's most senior building
arbitrator.
WE are here today to honour the memory of a very
happy man. How many little boys have an enormous
yearning to become train drivers. . . and how few
achieve that ambition . . . and happiness.
Bill Tompkins was fortunate to choose the right
profession and to enjoy every minute of his time spent
first as a very successful builder of world wide repute
and later as an international arbitrator. Perhaps the
culmination of his building career was in 1965 when he
was elected President of the Chartered Institute of
Building and with the presentation of a special medal
for his outstanding efforts on behalf of the Industry.
He was instrumental in forming the Jersey and
Guernsey branch of the Chartered Institute of Arbitrators.
He also had the good fortune to meet and marry
Betty.
I had an early choice of either aviator o r architect,
and had to pause and reflect on what might be in the
greater danger, the lives of the passengers of my
aircraft or the stability of my structures. Fortunately
as an architect I have been able t o share the responsibility of structures with some of my engineer friends.
I cannot recollect having ever killed any of my own
passengers although in 1964, having landed upside
down - which is not easy, my passenger whose name believe it o r not - was John Lucky was heard to
remark, 'I never want to fly again!' - and he never did.
Today I a m addressing you as an architect and
arbitrator on just a few matters that have occupied my
minc! over the years when trying to relate the practice
of law to what happens in the practice of building.
Traditions
We in this country make jokes about our professions
May 1991
and none d o this more than lawyers, in their lighthearted references, but I know that there is nothing
which is inconsistent with respect for the law. It is part
of our national characteristic to invest our most
respected institutions with a sort of mocking tenderness -part of our national characteristic of restraint
and disinclination to wear our hearts upon our sleeves.
I always say that being an architect is better than
working for a living!
I so often reflect on the words of that most eminent
of judges who once referred to:
The High Court as being the court of initial error,
The Court of Appeal as being the court of intermediate
approximation.
The House of Lords as being the court of final error,
which if by chance is right, is invariably so for the
wrong reasons.
But in truth the whole of our system of administering justice - a system which has been adopted in many
parts of the world, is based on the preservation of that
which appears to be good in the work of our
predecessors.
But, of course, nothing is perfect and time changes
people and conditions, so that we make progress by
changing that which appears defective. I believe that
we d o not always get it right.
Much of what we d o is termed tradition and that
which is handed down sets a standard by which we can
measure ourselves and our work. It applies to almost
everything in life, but it must be regularly updated. So
that over the years there have been many changes in
the Law especially in respect of construction disputes.
It is, however, of interest to consider how practice in
the various industries evolved. There is usually a good
reason for that evolution, especially if one endeavours
to trace it back through the history of the old craft
guilds, although Havelock Ellis was not quite sure of
this when he wrote 'Progress is the exchange of one
nuisance for another'.
Changes in the Construction Industry
We should admire and keep the best of the past, but
also keep a vision of the future. The changes in the
construction industry and particularly in respect of
large firms of builders have been enormous since the
war. Large firms then carried out 90% of the work
with their own labour and only specialist trades such
as lifts and special finishes were handled by subcontractors. Now there are no large firms of builders they are merely building contractors specialising in
management, and sub-contracting the whole of the
trades from excavation to roofing, and the subcontractor has grown in importance and practical site
supervisors are now becoming as scarce as triangle
players.
The construction industry has developed over the
centuries through changing techniques, customs and
usage. It is popular to talk about 'the state of the art'
when disputes develop, and to endeavour to prove that
subsequent methods, and legislation, have set a new
standard since the date of the contract under consideration.
But this is only part of the problem.
During the 1930s and to some extent up to the 1950s
architects had the advantage of a more practical
approach to their work. It has now become very
academic. Building firms were run by builders, now
they are run by accountants. The situation has now
arrived in many contracts where the architect cannot
rely on the average contractor being a practical expert
in the building process and with the deterioration in
supervision 'the state of the art' is so often governed
not by the Architect or main building contractor, but
by a series of sub-contractors, and labour-only gangs.
Two other factors have contributed to the low standard of supervision on contracts:
(i) Up until recently the construction industry has
had too many builders chasing too few contracts
so that tenders have been unrealistically low,
which has led to the appointment of inferior
supervisors in charge of work beyond their capabilities. This has attracted more claims.
(ii) The advent of fee competition amongst the professional team has reduced the standard of site
information which has made it more important to
have experienced site supervisors available, to
convey, describe and co-ordinate sub-contractors'
shop drawings, but this has not happened.
Architects have also suffered from the 'no win - no fee'
basis in respect of planning applications for many
years. Lawyers may soon be faced with this problem in
their work in the near future.
Background to Standard Building Forms of Contract
Up until 1800 buildings were erected to a brief
description or specification of the work, and payment
was effected at intervals with a retention held back by
the employer. There were no conditions of contract as
we know them today, and the architect or employer
had absolute power, and builders felt at an enormous
disadvantage.
With the formation of the Institute of British
Architects in 1834 the increase in the scale of building
resulted in a more professional and disciplined
approach, by the architectural profession, with a
general chance of builders obtaining contracts by
'contracting in gross' as opposed to 'measure and
value' conditions being introduced into tendering
documentation.
'General Conditions' clauses inserted into specification documents varied from one architect to another.
The General Conditions clauses were only to be
found in the specification document and were not
incorporated in the actual contract. However, the
specification was signed by the parties and annexed
and referred to in the contract documents. The time
had still to arrive when the building contract took the
format of the present day Standard Form of Building
Contract.
Standard Forms of Contract
Much has been said - especially by lawyers - about
the many weaknesses of the Standard Forms of
Contract but that is generally when disputes have
arisen.
Generally speaking they have proved satisfactory.
Their existence relieves owner and builder of the
necessity of themselves evolving a form of contract to
meet each individual case. Were it not for the Standard
Forms, the employer would be saddled with the
expense of drafting an appropriate form of contract
whilst the builder would be obliged to scrutinise the
contract in detail to see that his own rights are
safeguarded.
The Standard Forms act as a guarantee to both
parties. Both are aware that representatives of their
own interests have helped compile the documents.
A builder need not ordinarily consult his solicitor on
the legal conditions contained in the Standard Forms.
They are the conditions which he knows and upon
which his business is based. There must, of course, in
most contracts be special conditions of some kind but
special conditions should not be inserted relating to
matters already 'dealt with' in the standard general
conditions, nor be at variance with the standard
conditions.
Acceptance of the document involves a certain
surrender of rights by the parties to a building contract
but standardisation in clear and simple language has
helped create a confidence between parties and the
Arbitration
1980 Form clarifies many of the earlier rather obscure
provisions contained in the 1963 edition.
Of course the Standard Forms are compromise
documents, and there is always a danger of wanting
yesterday to come back.
The Aims of the law
Pluto is credited with saying that justice is a set and
constant purpose giving to every man his due; and at
the Bentham Club Presidential Address in 1985, Sir
Jack Jacob stated:
'The social interest which the administration of civil
justice promotes may be seen in many ways, the cumulative effect of which is greatly to enhance the respect for
law and to increase the understanding of the importance
of rules of law as regulating social relations. It helps to
bring into the open and to make public the developing
nature of legal and social relations in the light of changing
social conditions.
The Rt Hon Lord Roskill has stated that:
'The practice of the law involves two real dangers. The
first is that lawyers as a race, are a very close corporation,
working very closely together. Like most close corporations, they suffer from a tendency to self-satisfaction, and
become resistant to change. The second, which in the
biblical phrase, like unto the first, is, that lawyers do not
see the law, or themselves, as others in the world outside
them and it.'
How Fair is the Law?
I have pondered over the necessary attributes of a legal
system from a practical point of view and believe that
it should be seen to be:
(i) Fair
(ii) Equitable
(iii) Efficient
(iv) Quick and simple
(v) Speedy and economic
I have considered these requirements in respect of
disputes in the Construction Industry.
Fairness
There is no doubt that the Courts d o not support any
procedure which would lead to an unfair result, so that
it would appear, that it is an understood, and an
accepted application, that the judge or tribunal must
act fairly, impartially and judicially, and in accordance
with the requirements of natural justice.
In the House of Lords in the Bremer Vulkan case,
Lord Diplock said, in respect of arbitrators:
'. . . the parties make the arbitrator the master of the
procedure to be followed in the arbitration. Apart from
a few statutory requirements under the Arbitration
Acts . . . he has complete discretion to determine how the
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arbitration is to be conducted, from the time of his
appointment, to the time of his Award, as long as the
procedure he adopts does not offend the rules of natural
justice.'
Well then, what is Natural Justice and how does it
relate to fairness?
In Carlisle Place and Wimpey (1980) Robert Goff, J.
(as he then was) said:
'Generally speaking, courts do not interfere with procedural orders made in the course of hearing of arbitration. It might, of course, be different if an arbitrator failed
in his duty to act fairly, though normally one would
expect such a matter to come before the court on the basis
that there had been misconduct.'
It appears that Equity is the quality of being
impartial or reasonable and is said to equate with
fairness.
T o act in an equitable manner is to be reasonable,
fair and just.
But:
In Snell's Principles of Equity it states:
'It would be a mistake to suppose that the principles of
equity as administered in the courts and described in his
book are CO-extensivewith the principles of natural
justice. Owing to the difficulty and doubtful wisdom of
framing and enforcing any general rules to cover them,
many matters of natural justice are not subject to legal
sanctions, but are left to the dictates of public opinion, or
to the conscience of each individual.'
'In order to ensure the smooth running of society it is
necessary to formulate general rules which work well
enough, in the majority of cases. Sooner or later,
however, cases arise in which, in some unforeseen set of
facts, the general rules produce substantial unfairness.'
The Building Contract Dictionary defines 'Equity' as
'Literally, fairness or natural justice'.
So then to act with fairness is to be free from
discrimination, and dishonesty, to be just and impartial. It is of interest that at the International Arbitrators meeting a t Selsdon Park recently I was
informed by the delegates from Europe that there is no
such word as 'fairness' in French, Italian, German o r
Spanish. The nearest word is 'impartiality'.
We are guided then towards the expression 'Natural
Justice' and to act in accordance with the rules of
Natural Justice appears to call for the following
principles to be observed by courts and tribunals:
(i) N o man shall be a judge in his own cause.
(ii) No man shall be condemned unheard.
(iii) There is a duty to act judicially.
(iv) There is a duty to act fairly.
(v) There is a duty to declare any interest by way of:
(a) A financial interest.
(b) A likelihood of bias.
The existence of a moral obligation to perform these
duties is undeniable. The question is whether it is
backed by legal sanctions. How practical is it?
How near is Fairness to Natural Justice? When a
caveman's mate was stolen by another caveman, the
latter was liable to be knocked on the head with a stone
club. In prehistoric times this was probably thought to
be very good natural justice, but it would not d o today,
as it is forbidden to take the law into one's own hands.
Nor can the rules of equity of which the best known is
that forjustice to be done it must be seen to be done, be
equated with those of natural justice.
In Maclnnes v Onslow Fane (1976) 3 ALL ER 21 1,
Megarry, V.C. after expressing the view that the
phrase 'natural justice' should be rejected in favour of
terms such as 'fairness' o r 'the duty to act fairly' went
on to say:
'The suitability of the terms "fairness" in such cases is
increased by the curiosities of the expression "natural
justice". Justice is far from being a natural concept. The
closer one goes to a state of nature the less justice does one
find. Justice and with it "natural justice" is in truth an
elaborate and artificial product of civilisation which
varies with different civilisations.'
At about the same time a similar view was put by
Ormrod, L.J., in Norwest Holst v Department of Trade
(1978) 3ALL ER280, CA at P294:
'The phrase "the requirements of natural justice" seems
to be mesmerising people at the moment. This must, I
think, be due to the apposition of the words "natural"
and "justice". It has been pointed out many times that the
word "natural" adds nothing except perhaps a hint of
nostalgia for the good old days when nasty things did not
happen. Perhaps we should use "fairness".
If one can assume that 'fairness' equates in general
terms with justice the whole ethos of our legal system
appears a great deal clearer to the lay mind, stripped as
it were of its considerable.mystique. The practical
aspects of law - especially in commercial disputes become a lot clearer. In the construction world, all that
the parties to the contract should expect, is fairness on
both sides in the execution'of a contract. The professional team is expected to d o its work in the preparation of the design and drawings, in a reasonable
and clear manner, and the contractor and subcontractors, to carry out their work, in a reasonable
manner, in respect of quality, time and cost. The
Unions would be quite satisfied with a fair day's work
for a fair days's pay! . . . perhaps!
However, if we are to d o better in the 1990's we must
stop mistaking good intentions for achieved reality.
I suppose we all have our own ideas of what is fair
and what is not fair. Certainly Charles Dickens had.
M r Pickwick when on trial for breach of promise to
Mrs Bardle said to his lawyer - 'I've no doubt that
justice, right and fair play will prevail and his lawyer
observed, 'That will be a change.'
Sam Weller once remarked 'It's over and can't be
helped and that's one consolation as they always say in
Turkey ven they cuts the wrong man's head off.'
Changes in the Law
I believe that the construction industry has suffered as
a result of some changes in the law which formerly
gave it protection. Professional members of the
industry are facing problems of enormous claims and
enormous costs of professional indemnity, and courts
are tending to equate failure with negligence.
T o an average designer, the Latent Damage Act is
complex, convoluted, and in some cases unclear, so
that there are problems arising on the question of
interpretation. Lack of clarity affects all parties when a
dispute occurs, and it seems a great pity that parliamentary draughtsmen could not have expressed principles simply, without the complex cross-referencing
of some sections which are beyond the average
designer to unravel. Very few architects, engineers and
builders have the special expertise of a legal draughtsman.
The main weakness for the construction industry is
that the Act does not answer questions, which it was
initially hoped it would, and for which we lobbied for
inclusion; for example, when does a cause of action
arise?
If foundations develop problems within a year or
two and it is not uncommon, when was the actual date
of the cause of action? The Act offers no solution as to
the clarification of the starting date, such as, for
example, the date of practical completion. The uncertainty remains.
The Latent Damage Act gives little guidance on the
practical assessment of the extent of damage required
by the 'sufficiently serious' test which it establishes. In
construction cases, damage may not only be latent, but
also progressive, making the cut-off point for limitation purposes even more difficult.
A classic example is provided by London Borough
of Bromley versus a firm many have heard o f . . . Rush
& Tompkins Ltd, where Judge Sir William Stabb
considered four possible starting dates for the running
of time where corrosion of steel reinforcement in
concrete, had led to cracks in the building's exterior.
In order, the possibilities were:
(i) depassivation and the start of corrosion of the
steel reinforcement;
(ii) the appearance of hairline cracks in the exterior
caused by the corrosion;
Arbitration
Concern of Designers
One of the great worries for designers and their
dependants is how long will liability follow them into
their retirement. It would seem that professional
indemnity insurance should be retained at least fifteen
years after the contract has been completed. In the
same way documents may well have to be retained for
a similar period.
Another worry is that subsequent purchasers of a
property may have a right of action against the
designer, if he purchases the property in ignorance of
the fact that the property is already damaged when he
purchased it.
company is involved. I believe that much unnecessary
time-consuming and expensive litigation, for the
apportionment of liability, could be avoided if there
were only one source of insurance cover.
People involved in the construction industry find it
difficult to distinguish between a defendant's liability
in the test of negligence, as opposed to their contractual obligation in the light of the many and varied
judicial authorities.
In the case of D & F Estates Ltd & Others v Church
Commissioners and Others the judge in the first
instance held that the main contractors were in breach
of their duty to provide adequate and proper supervision of a sub-contractor's work and were liable in
negligence to the plaintiffs for this breach of their
duty - a decision which upheld the fundamental requirement of the 'builder in charge'.
We had always considered a main contractor to be
responsible for his sub-contractors, but both the Court
of Appeal and the House of Lords concluded that the
main contractors were under no liability to the
plaintiffs for damage attributable to the negligence of
their sub-contractor (for plastering) in failing to follow
the instructions of the manufacturer of the plaster they
were using.
For years architects have advised clients to adopt
the traditional method of contracting, because of the
safeguards provided by a main contractor taking on
the responsibility for the workmanship of the subcontractor. I am now reminded of the words of a song
that we sang during the war 'Where d o we go from
here?'
Effects of the Civil Liability (Contribution) Act 1978
With the increase in the size and complication of
building projects, and the involvement of so many subcontractors, there is a growing tendency in both
litigation (and arbitration by consent) for parties to be
joined in an action. Where there are several defendants
in an action, liability may be proportioned between
them, so that each will make a contribution to the cost
of the remedial works necessary, in proportion to the
liability awarded.
The joint tortfeaser rule -described in a House of
Lords debate as manifestly unfair - means that if
several parties to an action are found to be proportionately liable, and only one has the resources to pay the
damages, the one left pays the lot.
The construction industry has failed to produce a
national approach to insurance arrangements.
Lawyers are bound to advise their clients to sue all the
parties when a problem occurs, and the courts serve t o
determine the proportion of payments between the
parties' various insurers. Project insurance could be
arranged for the employer so that only one insurance
Evidence and the Adversarial and Inquisitorial Systems
It is sometimes difficult to elucidate from the evidence
given exactly what the point is that an expert is trying
to make. Under the common law with the Adversarial
System, tribunals act as 'umpire', being passive with
little investigating power. In the Inquisitorial System
evidence is clarified by an expert appointed by the
court. Both systems have the objective of endeavouring to arrive at a fair and just settlement. Arbitrators
have very wide powers which are not always widely
exercised. I would like to see wider powers to enable
judges and arbitrators to take the initiative in questioningexpert witnesses. It is already exercised in small
cases by arbitrators where lawyers are not involved, in
order to 'bring out' the salient points of a submission.
In fundamentally technical disputes it does assist in
bringing about relatively speedy conclusions to the
proceedings.
I would also like to see more use made of the
appointment of court experts in instances where the
opinions of technical experts acting for the parties are
diametrically opposed; the unbiased and independent
(iii) The occurrence of enlarged cracks, constituting a
danger to the public; and
(iv) the spalling of concrete following corrosion of the
reinforcement.
Although His Honour Sir William Stabb had no
hesitation in rejecting the first and last of these dates,
he expressed difficulty in choosing between the others.
This choice was critical, since the two dates fell either
side of the relevant date for limitation purposes.
Relying on the agreed expert evidence, Judge Stabb
eventually held that the second of the four dates
constituted 'relevant and significant damage'. The
action was accordingly statute-barred. However, it
may be noted that the judge concluded that the
hairline cracking was neither discovered nor reasonably discoverable by the plaintiffs, at the time when it
must have occurred.
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views of such experts could be fairer and of greater
assistance, in our adversarial system, in assisting the
judge in arriving at his decision.
Likewise the power to appoint special experts to
enquire and report could help shorten the time of the
hearing and ensure that a completely independent
opinion had been obtained.
Delays
Delays through adjournments in the Official Referees
Courts have done a great deal of harm to the image of
Official Referees. Cases before Official Referees should
always have a set date except in very special circumstances such as when genuine negotiations are in
progress. But if an adjournment is granted a new date
should be fixed and realistic dates and times should be
allowed for. I am aware that many cases are settled,
but the duplicated bookings which at present appear
to be the norm, lead to enormous additional costs and
heartache to the parties involved, and have a considerable knock-on effect on dates fixed for arbitrations
when the counsel involved have to give priority to the
cases they are involved in, in the Official Referees
Courts.
I know that a growth in disputes and a shortage of
Official Referees has led to this state of affairs.
Another matter which I believe to be wrong is when
a judge who tries a case for liability does not deal with
the matter of quantum in the subsequent trial. In
arbitration this seldom happens and it seems so logical
and practical to me that this should not occur. Surely
the same Judge with a knowledge of the case from the
start is the right person to see the action through to its
conclusion and to perform that Solomon-like balancing of the rights of either side.
Arbitrations
Over the years arbitration has changed from a genial
occupation to a quite complicated pursuit. As the
seventy-fifth anniversary of the founding of the Institute of Arbitrators passes so the demands for knowledge and a retentive memory grow. No longer d o
arbitrators judge solely in equity; in this country they
are bound by precedent. They are bound but not
manacled. Arbitrators still have considerable freedom
in their decisions. Arbitrators are still nominated by
the disputants. There is complete freedom of choice
when appointing them. This is the greatest compliment which can be paid to the wisdom and knowledge
of arbitrators. In arbitration the parties select their
judge; in the courts they d o not.
So as the late Cedric Barclay once said, 'Arbitrators
are elected because of their skill, ability and experience. T o maintain this aura, they must behave like
Caesar's wife'. I d o not exactly know what she did, but
she must have done it well judging by the smile
depicted on her face by subsequent illustrations in the
history books.
It is often forgotten that because most disputes are
commercial arbitrations an arbitrator is justified in
many instances in departing from normal rules of
procedure. Many trades have arrived at a procedure
which they adopt as being swifter and better than strict
reference to the Courts. Quality arbitrations are
examples, where the decisions of an expert probably
produces the right and fair answer more readily than a
full scale session before a Court of Law or even an
Arbitration Tribunal.
The general conduct of the case must be 'fair' in the
sense that it is impartial and does not prejudice one
party against the other. But the award must be based
strictly upon the terms of the parties' agreement out of
which the dispute arises, and a generally equitable
decision or 'palm tree' justice on the basis that on the
facts of the case, it is 'unfair' for the contract to be
applied as strictly as might be applied, in some cases is
wrong.
It should not be forgotten that the aim of arbitration
is to obtain swift justice at low cost. The appointment
of lawyers can generate extra expenditure which
ultimately has to be borne by the parties. It is said that
if solicitors are to be instructed, then the dispute might
as well go directly to the High Court. Whilst this is an
over simplification, many disputes which could be
settled quickly without the assistance of lawyers so
often develop into a full scale legal battle before an
arbitrator.
As Lord Justice Scrutton said in W Naumann v
Edward Natham & CO Ltd as long ago as 1930:
'During the last thirty or forty years business men have
formed the view that it is possible to be too accurate in
investigating disputes and that it is better on the whole for
business to have a rough and ready way of getting at the
truth than the more accurate, expensive and dilatory
method of the courts.
'This is particularly the case with the class of disputes
which are known as quality disputes. If a buyer rejects
goods on the ground that goods do not comply with the
contract in many particulars, the question is one which
requires someone to understand the trade to decide it
properly; and if that quality dispute is to be decided in the
Courts, the Judge who has the merit of complete impartiality and ignorance of the subject-matter, listens to three
or four gentlemen who say it is in accordance with the
contract and three or four gentlemen on the other side
who say with equal positiveness that it is not. He may, if
he is an exceptionally intelligent Judge, manage to see
through the contradictions of the witness; but he may not.
At the end of the proceedings there will be a fairly
expensive bill of costs, and commercial men may not be
satisfied that the right result has been arrived at.
In this case it was held by the Court of Appeal that the
Arbitration
evidence showed that the dispute had been settled by
arbitration in London in the "usual" way and that the
procedure adopted was not contrary to public opinion.
As to what is meant by the 'usual procedure', Lord
Scrutton said that this was the first case in which he
had known the trade prove the 'usual way', because it
appeared to him that the evidence here was overwhelming that the umpire had carried out the usual
procedure in a quality arbitration.
I d o not believe that the same decision could be
relied on now.
Conclusion
Disputes are inevitable in building contracts, d o what
one will. How can it be otherwise? In ordinary
commercial contracts, disputes are numerous and
sometimes very complex. If we have disputes in
commercial transactions how can we avoid them in
building contracts where the operations take place not
in the factory of the contractor, but on the site of the
building owner, which becomes in effect a temporary
factory in which a contractor must set up his plant,
deploy his labour, and organise his operations.
That factory, too, is the centre of a network of
operations - sub-contractors, nominated and otherwise, suppliers, nominated and otherwise, architects,
engineers, surveyors, specialists and tradesmen, with
all sorts of officials jointly breathing down the necks of
those concerned. The wonder is not that there are
many disputes, but that there are not many more, and
May 1991
that is only in the construction industry. Somebody
once calculated that we have 35 million laws on the
statute books to enforce the 10 commandments!
There are of course far more disputes than require to
be resolved by litigation or arbitration. They are
usually settled during the course of the contract,
whether by negotiation, conciliation or mediation.
Of course if there were no disputes to resolve the
world would be a better place, though some of us
might be poorer. When, in this imperfect world,
disputes inevitably d o arise we should seek to resolve
them with all that we can command of good sense and
efficiency - around a table if possible - and with a
fairness and understanding that is expected of reasonable people, before they develop into a full scale legal
battle.
But if they should so develop I hope that judges will
have more regard to the practical aspects of the
construction industry rather than allowing lawyers to
turn matters of fact into matters of law.
Joyce Grenfell once remarked that it is not so much
the pursuit of happiness as the discovery of joy that is
important, but Cicero took a more prosaic view in his
observation 'Let us make the best of what has
happened'.
I gain confidence, however, from the thought that I
shall eventually succumb to that richly deserved
obscurity that comes to us all, but I hope still with
some of that wonderful enthusiasm that Bill Tompkins
displayed in every task he tackled and with the thought
that it has all been well worthwhile.