Rob Horne is a partner in London law firm Simmons and Simmons and is one of the most visible pro-NEC practitioner lawyers. In this short interview he gives practical tips when using the NEC3 Engineering & Construction Contract.
How would others describe yourself in the 10 words ?
I would say “focussed on practicalities and solutions, understands construction and industry mechanics”. My background is a bit different than most lawyers, so I focus on commercial outcomes with the law as a means to that end, rather than ‘ivory tower’ law – that’s not what I do. It’s the practical bit that that I like and finding solutions that work for long term benefit.
How did you first get involved in NEC ?
Entirely by accident ! I was asked to advise a contractor on a major infrastructure project about 8 years ago. The project and problems were horribly complicated, but enormously enjoyable to try and solve. Having done a lot of FIDIC and JCT based projects to face something that was that different and prescriptive in how you do things was a breath of fresh air.
What do you like or even love about the NEC ?
I like the structure. I like the way it flows and gives you an easy route through the project that you can follow day-to-day, rather than something you only pick up when you have a specific question. You should know more or less what it says all the way through like a story book.
What do you dislike most about NEC ?
With the contract, it is that it doesn’t cross refer and the simple language can lull the uninitiated into thinking it is a simple contract to use. Until you are familiar with it, it is not easy to follow to jump from section to section. If you read and remember it from cover to cover it’s easy and makes perfect sense, but dipping in and out of it when you don’t have that overall familiarity causes difficulties.
My biggest bug-bear generally is that people don’t do that. People don’t read and understand how the whole contract works together. They pick and choose sentences or clauses in isolation.
What does that lead to ?
It destroys the benefits of using the contract. It’s procedurally based and procedurally driven which allows you to create or complete your project in a more managed systematic way. If you start chopping and changing how you manage your contract, then the system won’t work, your risk awareness won’t work and it all starts to unravel. Often projects need a guiding hand to get back onto the right path.
So what advice would you give to an NEC newbie ?
That is really easy ! Sit down and read the contract cover to cover. Then read it backwards and start annotating how you get from one clause to another. Get some training or join a discussion group, there are some good ones out there. I still have my original second edition copy which, while I don’t do many second edition contracts, I still pick up and use because it has all my notes scrawled all over it. Most of the clauses are the same and in the same place.
What would you improve on your next NEC3 contract ?
What I would love to improve is to get the whole site team being more commercial. Engineers are terrible at understanding that time and money is a consequence that is important for their business. What they want to do is build stuff, make it look nice and work brilliantly and be innovative in an engineering sense. But they miss the point that the business needs to make money and if the business is making money, you usually get a better product. The other thing I would like to adjust is how the Project Manager integrates in the project team. It is essential that role is filled by someone with the drive and enthusiasm to follow the procedures but also knowledgeable enough to find solution that are perhaps a little off the beaten track. There are too many projects where I see a disconnect between the Contractor and Project Manager and that is generally going to be harmful.Has your experience with NEC to date changed the way you work ?
Yes, enormously. When I started I tried to use it like JCT where you pick and choose the clauses which seemed appropriate to the problem you have. Now I am a massive advocate of applying the contract as a whole : it’s not just core clauses; it’s not even core clauses + main and secondary options; it’s not even those and the Z clauses (the additional conditions of contract); it’s making sure you tie what you want to achieve in with the Works Information – which is distinctive from the Site Information - which is an area that lawyers don’t normally get involved in at all.
What do you think the biggest issue that construction professional’s face ?
A seeming need not to read the contract and just do it as you have always done. When you have a contract as easy to read as the NEC, don’t ignore it. Just pick it up, read it and do it.
About the Author
Rob Horne is partner in London law firm Simmons and Simmons and is one of the most visible pro-NEC practitioner lawyers. He advises on construction, engineering & infrastructure projects all over the world, particularly the Middle East and Europe. He has over 20 years of experience on construction disputes and is recognised in Legal 500 for his work in both rail and international arbitration.Rob can be contacted on +44 20 7825 4264 and at rob.horne@simmons-simmons.com.