Legal research can roughly be defined as the procedure used to identify and retrieve data or information relevant to aid legal decision making. In a wider perspective, legal research encompasses various steps of a course of action that starts with analysis of the facts of a problem and ends with the communication and enforcement of the results of the investigation (Jaffar et al., 2010). This kind of research varies from country to country and legal system associated with it. However, it generally involves aspects such as; identifying and finding the primary sources regarding various jurisdictions like cases, statutes and regulations (Valentine, 2009). Secondly, it involves finding and searching of the secondary sources, for instance, legal treaties, legal dictionaries and directories, law reviews et cetera. And thirdly, it involves finding or searching of non legal documentaries for support and investigative information.
For quite a long time law students and lawyers used to depend on the library to utilize the law reports and statutes in it. However, the law has transformed daily and the law students have always struggled to buy text books to keep up with the changes in this particular field. But as the level of technology band everything else relatively changed, they now have a wealth of various sources, including, databases, and the internet, they can utilize, so they don’t have to be going to the library every single time. These very sources are accessible even from homes and other remote places saving on wastage of time and other resources (Valentine, 2009). This paper is based on the practical sense and gives a straight forward guide to the legal information sources, covering the aspect of legal research that are the most up-to-date, both electronic and printed.
In this regard, the emphasis is on European law.
Legal research unlike other researches begins with general material, including case laws, journals, statutes, and the reference materials like the dictionaries, directories and research guides as already itemized above. The main objective is to attained comprehensiveness and be up-to-date as possible, taking in very critical legal developments such as civil procedure reforms, devolution and human rights. It also encompasses the explosion of information on the internet or web and the accessibility of other online services.
Fundamental aspect to success of the legal research, whether by law students or practitioners and attorneys, is the need or access to the most authoritative and up-to-date sources of law. The legal researchers should to have any single excuse in this context, since, the wealth of choice of sources have increased tremendously, and many online sources are also being updated on a daily basis (Ismail et al., 2010). Anyway, even the sheer amount can still result into a daunting task.
The primary material of the legal research includes case laws or law reports, statutes and other regulations. In this senses let’s for a legal researcher doing the legal research he or she may need to focus on the finding of tools particularly applicable to cases. First according to The All England Law Reports Review issued by The All Law Reports; this shows a collection of articles assessing critical cases with citation in human rights, statutes law, and European Union Law specific subjects (Callister, 2010). From this law report, if one can as well find cases in the print form through:
Understanding Citations, for example, if the researcher has the full information regarding the citations of the case being researched on and report. However, it is worth comprehending the components of citations. Citation has four major components: abbreviation of the starting of the case report, the date, the volume, and the page number in square brackets and is the year in which the case was probably reported. For instance, Cadogan v. Domovic [1984]2 All ER 168 simply meaning that, the case is found on page 168 of the second volume for 1984 of The All England Report. But if the reports exhibit a recurring volume number despite the year, the date is placed in the round brackets and is the year judgment was done (Callister 2010). For instance, Wills v. Bowley (1982)75 Cr App R 164, which means the report is in the 75th volume of the Criminal Appeal Reports at page 164. Perhaps, in this case, the date is not very important to finding the correct and the required report (Ramsey et al., 2009). Despite all these, the form of citation for the Law Reports has changed over the years explaining this aspect of the date.
Searching by Subject; if the researcher lacks the specific case to search for but needs to find cases on a particular topic, then they need to check under the subject area in the following reference work or search their subject index:
Digest and the indexes to the single reports contain subject indexes together with the well organized case names (Webley, 2010). The current sources like the textbooks, case books and the loose-leaf works on specific subjects also can help the legal researcher.
Up-to-date information; it is critical for a legal researcher to countercheck the very latest data of information to ascertain that the law has not recently changed and that he or he don’t miss an important case. Otherwise, to check how the case has been handled, then the legal researcher should consider looking in the Current Law Citator and Monthly Digest or in the index of the law report or the Digest (Webley, 2010).
The secondary materials in the legal research include; legal journals, academic journals, electronic sources, web journals, general online services et cetera. In this regard, for example when a researcher wants to find out some information or legal data in the journals he or she must be very conversant with the citations of the journals. It should be straight forward to access a specific journal article where the researcher has got the reference, but most of the law student does seem to have problems with it (Webley, 2010). In particular they don’t have the recognition of what is a volume page or number. In legal research, there are various ways of citing the journals unlike legal reports and statutes, but for this particular case, the basic components are the date, volume number, the journal title in full or in abbreviation and then the page number. A typical instance of this kind of citation is, Norrie, Allan. From Commercial Law to Legal Theory: the Mysterious case of the Reasonable Glue Sniffer. (2002) 67MLR 538. The least thing required to find the article is the journal name or abbreviation, the date or the volume and consequently, the page number. The first source for checking this kind of citation is Raistrick, Donald. Index to legal citation and abbreviations second edition. If this does not contain it, then, a website that can help is the Cardiff Index to legal abbreviations . It has a database of all common legal abbreviations, like the law reports and law journals. Furthermore, legal research can also be done using, law libraries, law librarianship and subsequently teaching law (Webley, 2010).
Legal research is carried out by anybody with the need or the urge for legal information
Including law librarians, lawyers or the paralegals. As already preempted in the discussing above, the sources of such information have a wider base, ranging from printed books to free research websites. Regardless of whether you are utilizing legitimate sources, you may not do lawful research (Howarth & Watson, 2009). Legitimate research is a look for explanations of the law found in statutes, cases, or other essential sources that can be utilized to anticipate how a court would decide a dispute including a particular reality circumstance. In numerous controls, there is a refinement between lab or empirical research and library research.
Legal research, as performed by an attorney, is dependably library examined, regardless of whether it is done in books or computer databases. Lawful sources are frequently utilized for investigating in different controls, for example, history and humanism, yet students of history and sociologists utilize the lawful hotspots for a reason or result not quite the same as that of a law student or associate lawyer (Webley, 2010). Given this distinction, a non-lawyer may use diverse sorts of lawful research procedures and models.
Lawyers must know whether there have been any current statutes or cases that have changed the prescient capacity of the sources they are depending upon. The cost of not finding these current materials can be the distinction between the customer winning or losing a claim. Then again, most papers assigned out in non-law courses require a student to talk about the effect and essentialness of a specific lawful choice, a statute, or a region of law. Just in uncommon cases a non-law student is required to inquire about a zone of law as comprehensively as a lawyer (Bailey et al., 2011).
Abstract
The law touches almost every part of a construction venture. Including, the feasibility, financing, site obtaining, allowing, ecological consistence, protection, contract, duty, work and business, and consequently, dispute resolution in construction projects (Hughes et al., 2015). Staying away from the legitimate landmines covered up at each period of a task is similarly as vital as having the undertaking appropriately sequenced. The legislation regarding the construction processes is concerned with planning and the by extension building control, however, there is also a legislation covering the health, safety and environmental protection. Individuals who go against these legislations and break them are sanctioned as criminals and they are prosecuted for non compliance (Chan et al., 2010). Under construction law, there is also some legislation regarding the procurement processes, defective work and materials work affecting the neighboring buildings and the processes of dispute determination.
The purpose of this paper is to bring forth the fundamental principles of construction law, and perhaps not to take into consideration specific standard form contracts of contractual processes, to provide a detailed assessment of the current construction law cases. This particular law is not a distinct branch of law, for instance the real property or family law or the law of trust (Tieder, 2009). Rather, it encompasses the enforcement or the implementation of explicitly comprehended legal principles, in specific the law of tort and contract, to a specific commercial project and the procuring of the construction processes regarding the undertaking. Now, let’s take a look at the processes involved in this particular law.
Keys words: construction claims, delay analysis, extension of time scheduling, damages and remedies, procurement, defects, liability, et cetera
The following are the process involved when undertaking procurement in Construction Law:
For a decision to be made on whether to proceed with the project or not, the client’s constraints and requirement must be evaluated. And in this regard, the very original strategic option is made to identify requirements for the constraints on the undertaking and covering matters such as functions, location, and quality, budget, and procurement route and consultant roles (Deakin & Morris, 2012). Ultimately, the client will start assembling the consultant team. The extent of consultancy is dependent on the nature of the project and procurement path. Other stages in this regard may include; the outline proposal, final proposal, detailed design, production data or information, tender action and finally the construction (Sweet & Schneier, 2012). The final stage of construction involves three major sub stages, mobilization, construction and completion or finishing. At this very last stage the employer’s consultant may scrutinize all the aspects to ascertain and certify all the duties. However, if the undertaking is notifiable under the CMD regulations then, a principal contractor must obviously be appointed by the client before the beginning of the work. The interrelationship between the stages of construction and pre-construction is dependent on the procurement channel.
The following are the legal relationship involved in the construction projects:
Structuring legal or lawful grounds; the construction project structure and its legal grounds is majorly dependent on the selected procurement and the payment routes and range unto which the individuals other than the client, who might be affected if the project is defective are to be joined in the structure (Soliño & Gago de Santo, 2010). The main aim her is to see that there exists an explicit paths or routes of the contractual obligation between the providers of the goods and services in regard to the project those e who might be affected or suffer loss or damage if the goods and materials are defective or inadequate.
Procurement channels; the most fundamental procurement channels or routes involve; traditional procurement, design and build procurement, management contracting, and finally the construction management.
Payment process and routes; the fundamental payment procedures are for balancing diverse risks between the employer and the contractor, more specifically when the cost of the construction becomes more than what was estimated (Ysebaert et al., 2009). It is obvious to run away from the lump sum where the project cannot be quantified in the end. Any way the following are the fundamental payment routes; lump sum, measurement and value, cost plus, guaranteed maximum price, and finally the target cost.
Enlarging protection to third parties; the perspective of the buyer of the project can be secured through assigning of the benefits of the various contracts to the person, which always very possible and appropriate (Mason, 2009). Collateral warranties are given as an assurance to the third parties who may suffer loss or damage if may be the property becomes defective in the process. This way, a warranty can be regarded as the contractually binding promise or document offered to the third party by the warrantor in the presence of a principal party, showing that the warrantor will carry out his or her contractual responsibility or the obligation to the principal. It is taken to be collateral because generally it is a secondary promise and dependent on the major contract that it relates to (Eriksson & Westerberg, 2011).. It very obvious for the large projects to issue a warranty in the presence of the consultants, contractors and the specialists in favor of the purchasers, tenants, and even the funders. Therefore, it is very important to note that the warranties are not indemnities and they should not be taken to be so in this context (Chan et al 2010). Although this may change as the construction law also changes overtime. It probably shows that the third party has got the capacity to implement a term of contract if it demands so and confers the various benefits to the third party (Ni et al., 2011). Unless the contract clearly or explicitly stated that the terms were not meant to be enforceable or implemented by the thirds party. The third party rights are enshrined upon the defenses availed to the contract parties; however, the parties are not capable of varying or rescinding the contract in the absence of the third party or without the third parties consent
Securing finances for the remedies; explicit routes for various projects are regarded to be incomplete if the there are no extra funds and other resources availed for anything that might go wrong. Through, the use of insurance or bonds, alongside carrying out appropriate checks on the concerned parties, can ensure that extra funds are available for any remedial work. In fact a performance bond is considered to be a contractual project by a third party who may not be necessarily an insurance company or the parent company to pay money to a creditor. This is only possible in the event that the person whose performance is being bonded, usually a contractor, fails to honor its contractual responsibility or obligation to the creditor (Eriksson & Westerberg, 2011). The amount of performance is usually computed as percentage, in most cases it is ten percent of the total value of the contract to which the bond is founded. The sum is or can only be paid on the event that the bonded party proofs it, and then only to the range that the principal p[arty has suffered a tangible damage as an outcome based on the default. On the other hand, on demand bonds can be pronounced not exactly on proof of default by the principal debtor, however, on the release and presentation to the bondsman by the creditor (Eriksson & Westerberg, 2011). In mot case banks consider such bonds since they don’t have to scrutinize whether or not the actual default happened, they only inspect that the relevant documentation has been submitted.
Over the last few years, especially in New Zealand, the dynamics or the complexities and the overall value of the construction has risen, with a corresponding increase of the concerns surrounding the diversity of dealing with the cash flows from the projects which the payments has been made and other undertakings demanding to be prioritized (Tieder, 2009). Such projects can be easily sustained in the booming markets whereas in the case of declining markets, such projects cannot be sustained.
Both the employer and the contractors consider the time allocated for the performance of a project to be very essential. Therefore, it has be quite imperative for the parties involved in the contract to assess and do thorough analysis of the possible project delays for the ultimate aim of making the informed decisions on the respective time and the costs of the project compensation claims (Varnäs et al., 2009). In this regard delay analysis techniques (DATs) has been in use over the years for helping in decision making, however, this techniques have not entirely succeeded in resolving various dispute incidences related to the delay claims resolutions. Otherwise, the main source of the disputes is based on the capabilities and the limitations of these techniques when they are enforced. Establishing a better option on the aspects of these techniques can help in comprehending and solving the challenges involved and adoption of various remedial mechanisms (Farooqui et al., 2014). This section seeks to establish such knowledge, comprehension and the review of various aspects not tackled by the techniques and their improvements needs. The research assessments have proved that different techniques give various analysis outcomes for the similar delays, perhaps, because of their unique application procedures. The research recommends the remedial mechanisms to be used through the means of incorporating matters regarding the analysis, and focusing them on the projects.
The time allocation for the contract performances is directly proportional to the profitability of the constructions projects from either perspective of the stakeholders (Subramanyan et al., 2012). That is to say the duration of the contract performance has a direct impact on the profitability of any construction undertaking. From the perspective of the project owners, like the employers, the benefits lost is because of the inability to execute the project within the agreed date or time frame, while on the other hand, the contractor will consider the extra cost incurred results from the prolonged stay on the site. In construction law, there are standard provisions that have been enacted to anticipate the probable delays brought forth by either the actions or inactions of all the parties involved in a construction project (Hampton et al., 2012). In the event that the delays have resulted from the actions that are beyond control by the contactor, the law has got the provisions, that pardons it from the consequences or it may be allowed compensation for the costs resulting from such events (Allen & Martin, 2009). Contractual provisions also go in favor of the employer or the owner to get back the liquidated damages from the contractor for any failure to execute the project within the timeframe regarded as the contract performance duration. In the provision, there are various clauses regarded as liquidate damages clause entitles the owner to recover specified amounts of money for the period of delay (Alnuaimi et al., 2009). Therefore, for such cases, the delayed schedule analysis is needed to inspect the activities that have probably made the project to overrun. And over the decades, the owners and the contractors have applied Delay Analysis Techniques (DATs) to achieve these preempted aspects.
However, in many cases, the parties are not able to resolve various claims unanimously making the disputes to be much costly after the finish of the projects (Aibinu, 2009)..
Furthermore, delay claims are now seen as the major sources of disputes in the construction industry and otherwise one of the most hard to resolve. This has caused remarkable initiatives from the legal researchers and the construction law practitioners on how to handle various techniques and to enhance the utilization of the delay analysis and entire development of the law documents for the provision of guidance to the legal researchers on how to best apply delay analysis techniques (Hart et al., 2012). Of such legal frameworks, the most prominent and notable one is the Delay Disruption Protocol established by the UK’s Society of the construction Law.
Despite the fact that there have been a lot of contributions in this regard, useful inspection of delay claims taking into account factors that influence various scheduling and delay issues sometimes lacks various legal practices (Callahan, 2010). Otherwise, there should be much awareness and incorporation of these aspects in delay analysis to enhance equity and amicable resolution of the delay claims. Construction Law as the major part of this study, the major challenge of the practitioners and the legal researchers studying this law is to ensure that they enhance or uphold the provisions of the existing delay analysis claims. As well as to ensure the proper review of the issues that are occasionally not represented in the analysis and the probable remedial actions or mechanisms that can be used ultimately. The scope should to investigate the techniques’ utilization both in theory and in practice with the mind of establishing the very useful framework for enhancing their proper application (Law, 2009). For instance, let’s look at project delay analysis using “Impacted As-Planned. This is a technique that measures the effect of the delays on the contractor’s as-planed CPM schedule. These delays are regarded as the activities and incorporated in the as planned network in their very respective order representing the effects of each and every delay at the period of showing how the project is delayed. The amount of delay is equivalent to the difference in the completion dates within the schedules before and after the very impacts. This particular technique is very applicable for the analysis of delay during and after the project been completed.
Practical completion in construction law is regarded as the period or the point at which the contractual obligations have been completed by the contractor and the legal hand over of the projects or works can be done to the client (QC, 2010). At this point a number of things or factors are considered including the; the possession of the site is given officially to the client, the client is also considered as the building owner and consequently he or she becomes responsible for activities like, security, insurance, and maintenance of the building. At this particular stage also, there is the release of the retention monies are given out, the liability for the liquidated damages on either sides of the employer and the contractor ends, and consequently the legal aspects regarding the defects liability period starts. At practical completion, the building in which all the required statutory measures and approvals have been met is handed over to the client by the contractor.
The Health and Safety file, the entire set of Operation and Maintenance manuals, record drawings, the test data and the Log Book of the Building is given or handed over to the respective client. And at the very point, a wide and comprehensive measures or mechanisms begins. Consequently, at this very point or stage, the building owner is considered to have full comprehension as to how the building works. In Construction Law, the contractor would want to achieve practical completion of the contract so as to attain the leverage for the release of the retention monies, to completely avoid any exposure to penalties related to delays, particularly the financial penalties. The contractor would also wish to achieve practical completion, so as, to avoid the responsibilities of the insurance, the security or the maintenance of the site or the building. Subsequently, at this particular point, the contractors would wish the the defect liability period to begin (Callahan, 2010).
On the other hand the client would wish to achieve practical completion so as to; ascertain that the contractor has truly fulfilled his contractual obligations, at this point also the clients take charge or possession of the site or building by default some to organize on how to proceed with their businesses (Struckmeier, 2009). However, on some situations, the client may not want to achieve practical completion perhaps because; the contract may be incomplete, the work or the project may be unsatisfactory, the project or the entire work may be different from the brief design, in the event that the system is not legally binding or not proven maybe where there is lack of the statutory approvals and finally where the tenants are absent.
Practical Completion happens in the event that the project is complete for the entire practical functions and, more specifically, the appropriate statutory measures or requirements have been put in order with the relevant approvals and consents made; neither the enforcement nor the existence of any small outstanding jobs would influence its application (Callahan, 2010). Any provisions made by the requirements as being significant for Practical Completion have been fully met: and in the event that all the Safety and Health file and all the data or the information regarding the building, the operation and maintenance information needed by the contractual obligations to be given at this particular phase has been so given to the employer or the client. In the event of the case law, it is the responsibility of the Contract Administrator to come in as an arbiter but not as the client’s agent in case the misunderstanding arises that may require dispute resolution mechanisms (Callahan, 2010).
The case law also notes that minor defects may be condoned at this particular phase of Practical Completion; however the defects must not posses Health and Safety implications. Consequently, it is requirement by law that each and every engineering systems must be substantially complete for a consideration to be made (Chiang &Solum, 2013). Finally, the best practices such as; completion of the entire projects as per the contractual obligations, completion of Health and Safety file, the completion of all the Operation and maintenance manuals, tests information, acceptance certifications, and record drawings and their respective signing off by members of the design must be fully done.
Interestingly, defects are among the major causes of disputes or conflicts in the Construction litigations. Therefore, dealing with the failures related to construction, needs various aspects or degrees of familiarity with the legal framework, building practices and technology. In most case it becomes a challenge in identifying what the construction defects really are (Brand & Davenport, 2010). This, of course, has sparked different views into this array of law and for the individuals involves in making determinations. In this regard, the parties that fare involved may include the builder, contractor, developer, suppliers, manufacturer of the materials and consequently the homeowner. There are a few solutions to these challenges. However, is should be taken into account that there is a big difference between a construction defect and the nuisance claim like squeaking the floor or conditions that arise from lack of maintenance or wear and tear (Pickavance, 2013). Construction defects could be considered to be from the complex foundation and framing aspects, which undermines the structural integrity of buildings, to beauty aspects such as improperly furnished surfaces and the rotten wood trim around the doors and windows.
The courts have realized that construction defects can be incorporated into various aspects like; design malfunctions, material deficiencies, specification challenges, workmanship defects, et cetera. The purpose of this research particularly in this section is to give an overview of how the law treats contract defects from the perspective of the employer and the contractor, and consider how the damages for the defects are examined (Fox & Stallworth, 2009).
According to the Standard Building Contract Section 2.1, the contractor’s duty I respect with the contractual obligations is to carry out and complete the project in a standard and workmanlike way as explicitly indicated in the contract documents. If defects happen during this period, the contractor has the full responsibility to remedy the defects for which he is to blame at no extra cost. Similarly, the contractor will be fully responsible in the event that the remedial actions cause delay to the overall project (Gerber, 2013). Every material or good used during the remedial actions must be of the similar standards as the ones described in the contract and to the reasonable inspection and satisfaction of the architect (Fox & Stallworth, 2009). And the architect or the contract administrator must certify the work as practically finished or complete. And then the provisions denote that after practical completion, there is a ratification or approval of the project. At this time the contract admin may require the contractor to make good any defects that may still appear. Liquidated damages clause, states that the employer can recover particular damages in the event that the contract admin certify that the contractor failed to complete the work by the Completion Date (Law, 2009).
There might be cases where the designer disputes your ratification, or there might be uncertain issues, for example, differences on defects, repairs that are not completed agreeably, or absence of reaction to your worries (Callahan, 2010). You should first think about settling your disputes through the use of a mediator. In mediation, an unprejudiced third party, called an arbiter, will help you and your developer to arrange an agreeable settlement of your disparities. The middle person does not decide on the dispute, but rather will enable you and your developer to achieve a shared agreement that is in light of a legitimate concern for the two parties. Mediation is less tedious and expensive than litigation or arbitration (Fox & Stallworth, 2009). On the off chance that you and your developer can’t settle your dispute through mediation, you may consider other dispute resolution measures, for example, nonpartisan assessment, arbitration or litigation or other the court.
As I specified at the start, by a wide margin the best quantities of claims made by employers identify with defects. They won’t acknowledge structures in light of the fact that they clearly not surrender free. They at that point seek after activities regularly numerous years after the work was done. That will proceed (Fox & Stallworth, 2009). It might be that the expanding assortment of elective debate determination methodology on offer to the parties, including mediation, will imply that this dispute can be settled all the more effortlessly and monetarily.
Conclusion
Defects liability time will just emerge on the off chance that they are incorporated into the agreement. Contractual workers in this way should know that they don’t have the programmed appropriate to come back to the site to settle any defects. Employers should give cautious thought to the wording and prerequisites of imperfections amendment arrangements where they are thinking about employing another contractual worker to settle the first temporary contractor’s missteps. The legislation regarding the construction processes is concerned with planning and the by extension building control, however, there is also a legislation covering the health, safety and environmental protection. Establishing a better option on the aspects of these techniques can help in comprehending and solving the challenges involved and adoption of various remedial mechanisms.
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