Martin Green

Design obligations are insufficiently clear where a contractor is under a ‘dual role’ such as design and build. The aim of this paper is to: Establish the design obligations implied in design and build contracts. There is a ‘generally accepted position’ but there is concern that Trebor & Cadbury v ADT has modified that position, leaving obligations to be implied by common law where statute has failed, thus putting the ‘generally accepted position’ in doubt. To address this area of concern, the following conjecture is proposed: The Trebor & Cadbury v ADT case has modified the generally accepted position on implied fitness for purpose obligations, thereby leaving recourse open through common law. This paper analyses three main areas; (1) the ‘generally accepted position’ at common law and statute prior to cases concerning design and build contracts; (2) IBA v EMI & BICC, which was identified in the literature review as the ‘leading case’ on design obligations in design and build; and (3) the case of Trebor & Cadbury v ADT. A desk top study approach is utilised to analyse the statute law and the judicial argument to identify the principles of law and application of facts. The main finding is that the ‘generally accepted position’, that the law implies a duty of fitness for purpose on design and build contractors’, in the absence of express words to the contrary, remains intact and is not modified following the Trebor & Cadbury v ADT case. This position is established in common law and is enacted through statute. It is recommended that obligations should be expressed; where they are not, the parties should carefully consider the purpose of the contract and the level of reliance placed on others to imply or remove the obligations.

Purpose: Explores the appropriate role and approach of mediators and investigates whether mediator neutrality and party autonomy should prevail over mediators' obligations to remain neutral where non-intervention would result in unfair settlements. Design/methodology/approach: Arises from polarising and paradoxical opinions of the legitimacy of mediator intervention. This paper relies upon theories proposed in peer-reviewed journals, together with secondary data. Findings: Mediator neutrality has no consistent or comprehensible meaning and is not capable of coherent application. Requirements for mediator neutrality encourage covert influencing tactics by mediators which itself threatens party autonomy. Mediator intervention ensures: (a) ethical and moral implemention of justice; (b) removal of epistemological implications of subjective fairness; (c) compensation for lack of pure procedural justice in the mediation process. Party autonomy requires mediators to intervene ensuring: (a) parties adequately informed of the law; (b) equal balance of power. Research limitations/implications: Peer-reviewed journals and secondary data giving meaningful insight into perceptions, opinions and beliefs concerning mediator neutrality, party autonomy and fair outcomes. This data comprised of unstructured-interviews and questionnaires containing ‘open-ended’ questions. Practical implications: Mediator neutrality and party autonomy are less important than fair settlements. Originality/value: This paper exposes the myth of mediator neutrality - a popular concept demanded by and anticipated by the parties but which is practically impossible to deliver. It also shows the need for mediator intervention to ensure a fair outcome.