Interesting precedent?

[mercenary]

Here's an interesting story from the CBA website. It's highlights a couple of problems my company encounters often. That for watching briefs of uncertain duration it is difficult to estimate post ex costs, and that developers are quite often happy to pay for the site work, but then do everything to avoid paying for a proper report. One wonders why the planning condition was signed off without it.

Site owner told to pay archaeologist ?8,470
Thursday March 9th 2006
The site on which the Browne Street Bar is built, and its archaeological significance, was at the centre of a civil case in Carlow Circuit Court.
An old quarry that supplied the stone that was used to build Carlow and an ancient ditch that bordered the town were found on the corner of Browne Street and College Street.
The court heard that the owner of the site, Peter McCormack, 50 Tullow Street, Carlow, was granted planning permission to build on it in May, 2003, on the condition that he employed an archaelogist to supervise, record and report on the findings of an excavation dig.
Mr. McCormack was the defendant in the case, brought against him by consultant archaeologist, Mr. Patrick Neary, 24 Talbot's Inch, Kilkenny. He sued Mr. McCormack for the cost of writing a detailed and mandatory report on the dig's findings to the sum of ?8,470.
In his evidence in court, Mr. Neary said that both men agreed that his fee should be ?350 per day on the site and that he was paid on a weekly basis, promptly, by Mr. McCormack. However, when the dig was completed, and Mr. Neary wrote up the report, Mr. McCormack refused to pay the cost incurred in writing it up. Mr. Neary also said that the excavation was particularly difficult because it was so deep and that he used photographs to record his findings for health and safety reasons. Using photographs also meant that he wouldn't delay the progress of the site unduly.
He added that, in writing up the report, he had to sort through over 1,000 photographs and that his findings had to be re-interpreted for a surveyor. It took him 20 days to complete the report.
Judge Michael O'Shea heard that when the report was almost completed, Mr. Neary rang Mr. McCormack to tell him it was almost ready, but that Mr. McCormack refused to pay him. Mr. Neary said that he wouldn't give him the document until it was paid for.
Counsel for the defence, Elaine Morgan, BL, put it to Mr. Neary that archaeologists usually get paid a daily site allowance and that this fee would cover the cost of any reports. Mr. Neary refuted this, saying that this was 'never the case.'
Peter McCormack gave evidence, saying that he was a Chartered Accountant and Auditor. He said that he thought that the ?350 daily site fee included the cost of writing up the report. He also said that he was surprised when Mr. Neary rang him to tell him that the report was almost completed and that it cost 'in excess of ?5,000.' He said that Mr. Neary hadn't mentioned the additional cost of writing the report previously in their business transaction.
A civil engineer, Pat Buckley, gave evidence for the defence, saying that developers would usually get quotations in advance of a job so that they could budget the costs. However, he said that it would be difficult for an archaeologist to give an advanced quotation, given that they wouldn't yet know the extent of the project. He added that he didn't have direct experience of archaeologists being paid daily site fees.
Finding in favour of the plaintiff, Judge Michael O'Shea said that Peter McCormack seemed like a 'decent' man, but that the archaeological report was 'extremely important' and that it was a mandatory part of the project. He also said that Mr. Neary should be paid for work done under services rendered and ordered Mr. McCormack to pay the cost of the report, which was ?8,470.
? Carlow Peoplehttp://www.unison.ie/carlow_people/ & http://www.unison.ie/

[Curator Kid]

My County has a policy of not recommending the discharge of planning conditions until the unit informs us that the client/developer has agreed to resource (ie pay for) the post-ex work. This usually means that whilst the condition is active, the unit has negotiated a business agreement with the developer that can be legally enforced if they later decide to welch on the costs - even after the actual planning condition itself has been signed off. This system was tested a few years ago, when a developer tried to do precisely that, but as far as I know, it didn't take long to sort out in the unit's favour, even though the planning condition was long finished.

I don't actually know of another example of the need to produce a report an archaeological project being enshrined in law this way (although I'm happy to admit it's not something I've ever looked into). It could be a useful legal precedent though.

[Cautionary Tale]

The whole issue with costing a watching report regularly vexed me previously, and I was never entirely satisfied with either lump sums, daily cost based on number days on site or (worst case) agreeing afterwards. It does trouble me slightly what would happen in a hypothetical situation if the judge had ruled that the results were not worth reporting. Just a thought.

Of the Clan Sutton

[1man1desk]

The archaeologist in this case was probably being a bit economical with the truth in saying that archaeologists on WBs are never paid daily rates that include reporting. It is quite common, and we recently lost a tender on the basis that, although our daily rate was cheaper, we said that it did not include the report which would be extra. Our competitor (one of the biggest units in the UK) offered a more expensive daily rate that was explicitly all-inclusive.

I would say that this kind of problem should be avoidable if the parties clearly identify the scope of work and its stages, and how each stage will be paid for, before they start. That is as much the responsibility of the archaeologist as the client.

It is much easier to control these matters, and to avoid court cases, if you use a standard published form of contract. These are all very carefully written by committees with wide representation, to control all aspects of the relationship and limit risks to both sides. Above all, they are not written by either party to a particular contract, so there is no bias. In the UK, I would recommend the 'ICE Conditions of Contract for Archaeological Investigation', which was jointly written by the IFA and something called the 'Conditions of Contract Standing Joint Committee'.

1man1desk

to let, fully furnished

[mercenary]

Does this judgement help contractors or even curators who may be in similar disputes? My company has two ongoing post-ex projects where the level of reporting is very much in dispute. We want to do the analysis to the level required by the IFA guidelines among other things, while the consultants (different companies in each case) want us to do it somewhat more cheaply. This is not a crack at consultants this time, honest!

Both projects are similar to the one in the court case, where necessary work was far in excess of the original estimates (not our estimates), and any contract was essentially redundant early on in the work. Our responsibilities are pretty well outlined by the IFA guidelines, the brief etc, but what of the developer? I would argue that in cases of unexpected archaeology, if it needs to be dug then it needs to be reported on to a standard suitable for the scale of the work as part of the condition. This seems an obvious argument, that I'm sure curators would agree with, but it is exactly what some developers are arguing against.

Does this case put it beyond dispute?

[gumbo]

Agree with 1 man 1 desk. Our unit usually has an explicitly all-in day rate fee for watching briefs that includes reporting. For some larger watching briefs we have negotiated a day rate, and a post-ex budget. The important thing is to be explicit in your tender document /quotation, and get written approval of your quote from your client before proceeding with the work, and keep a diary!

If I've read the original post correctly, then I have less sympathy for the archaeologist than for the developer as (as far as I know) an all-in day rate is more common for WB's.

G

[mercenary]

quote:an all-in day rate is more common for WB's

Perhaps so, but we don't have an all in rate. I'm not sure of the thinking on this, but suspect that the scale of the post-ex on long watching briefs with loads of archaeology quickly exceeds the ability of a day rate to cover it. The specialist costs for large assemblages alone could be huge. And they are. If a long term WB is generating the quantity of records and finds of an excavation then how can a day rate for (probably) a single archaeologist cover it?

[Sparky]

I think that a vital part of this case is that it is in Ireland where dealing with archaeology is a legal requirement, rather then planning guidance.
To quote the Judge from the article: the archaeology report was 'extremely important' and that it was a mandatory part of the project.
I imagine it may be much more complex in the UK. Civil stuff...

[gumbo]

Yep, sort of agreed Mercenary. I was being a bit simplistic, but I suppose my feeling would be that if a WB was producing as good data as an excavation, then why wasnt it an excavation to start off with. I think we need strong curators for this, who identify the level of mitigation required. I am often surprised about levels of work that do get recommended (both too much and too little).

There are potentially big problems when the findings of a WB become tooimportant. For example, a WB that uncovers a really rich finds assemblage far beyond the what the curator expected (and therefore what has been budgeted for). What is the best way forward? Getting more funds from clients beyond the original brief purely depends on how nice (and rich) they are. In this case, should a new brief be issued by the curator? (I know that this has happened) And at this point surely there is a conflict of interest, because the site archaeologist is making a recommendation to the curator who makes a value judgement that a new brief should be issued which will cost the client more money.

AAAAAAAAAAAAGGGGGGGGHHHH. Its the old quantifying the unquantifiable thing again.

Sorry dont know about Ireland, so wont stick my oar in

g

[gumbo]

Oh yeh just thought. Another interesting set of problems is when you can't really have an excavation, but have to have a WB e.g. along the line of a very long thin water pipe or something else where you cant really understand the archaeology in plan. A question that bugs me is where do we (archaeologists) stop paying interest... I mean Ive heard of WB's on telegraph poles, the holes that trees are going to be planted in etc etc At some point archaeology as a discipline archaeology has to throw up its hands and say 'this data is useless' there is no need for a WB. Once again the difficult point is where this point is and who decides.

Im really glad its friday...

G