Magnifying glass in front of computer screen
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Being a lawyer in 2015 is, for the most part, a 24/7, modern and instant affair. Drafts of contracts are exchanged in seconds, letters drafted and exchanged without the need to wait for the post (or DX) to be collected and pleadings served remotely in the early hours. Clients benefit too, as they can reach their legal representatives at any time via the joys of mobile email technology.

While many private practice firms have moved with the times, it sometimes feels like the court system and its offices, which close at 4.00 pm without fail, have not. However, the times are-a-changing and the TCC is at the forefront. Continue reading

Cityscape of Canary Wharf, London at dusk
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Gotch and Gotch v Enelco Ltd was a feisty judgment from Edwards-Stuart J, one I’m sure that lends itself to being blogged about and oft quoted. It concerned an application for declaratory relief. Essentially, the Gotchs argued that the contractor, Enelco, had no right to refer a dispute to adjudication. They claimed the building contract had been amended to exclude adjudication and they fell within the residential occupier exception in section 106 of the Construction Act 1996. It is how Edwards-Stuart J dealt with the matter that I find interesting.

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Thomas Peter
REUTERS | Thomas Peter

The Court of Appeal (in Graves v Brouwer) has taken the opportunity to re-visit the vexed question of how you should go about proving causation where there are a series of possible causes and, perhaps more importantly, how you shouldn’t do it. Anyone faced with a fire claim would do well to take heed.

The problem is easily stated, but not so easy to answer:

  • Say there are four possible causes of a loss with, respectively, a 20%, 20%, 20% and 40% likelihood that they were the true cause. Is it right to say that the 40% cause, being twice as likely as any of the others, is, on the balance of probabilities, the cause of the loss?
  • What if all the possible causes identified have a very small likelihood, but one is still significantly more likely than the others?

The courts have struggled to provide a consistent answer to this conundrum, but I think the position is now much clearer than it has been for decades. Continue reading

Russell Boyce
REUTERS | Russell Boyce

The parties in Harding (t/a MJ Harding Building Contractors) v Paice and Springall are fairly familiar to us now, as this is the third time we’ve seen a reported judgment arising out of the building contract that Harding entered into with Messrs Paice and Springall. This one is actually the first of the three, even though it is the last to be made available (on Westlaw). Given it addresses the question of whether the parties had successfully amended their contract to exclude adjudication, you can probably guess what conclusion Ramsey J came to. Continue reading

Grass in front of office buildings
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On 1 October 2015, new far reaching regulations come into force that (subject to limited exceptions) will affect all businesses in the UK which sell goods, services or digital content to consumers. This will include many traders in the construction industry.

The regulations are contained in the Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015, as amended by the Alternative Dispute Resolution for Consumer Disputes (Amendment) Regulations 2015 (which I will collectively call the Regulations).

Last time, I looked at issues that included who needs to comply with the Regulations, what traders (and consumers) need to do and the type of ADR envisaged by the Regulations. This post looks at other issues, including the nature of ADR, whether the process is binding, what happens if one party does not want to use ADR, time limits and limitation periods.

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Laptop with binary codes on screen
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It seems that barely a week goes by without another high profile cyber breach (Ebay, JP Morgan Chase, Home Depot and Sony, twice, spring to mind). However, for every high-profile cyber-attack, there will be tens or hundreds of unreported phishing scams, malware intrusions and data losses stemming from employees (whether inadvertent of malicious).

Cyber security is a real and present danger within the construction industry and one which operators within the industry should be aware of and take steps to confront. A UK government 2015 survey indicates that 90% of large businesses and 74% of small businesses have suffered a cyber-security breach in the last year. Continue reading

John Kolesidis
REUTERS | John Kolesidis

It may be a little old (it was handed down in March 2014), but Ramsey J’s judgment in City Basements Ltd v Nordic Construction UK Ltd is a reminder that a payment dispute crystallises when payment is not made. The party claiming payment does not have to do more to ensure there is a dispute. As Ramsey J said:

“There is no need… in the case of an adjudication where it is a simple dispute about payment, for the parties to do anything else other than comply with the contractual provisions.”

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Building facade
REUTERS |

On 1 October 2015, new far reaching regulations come into force that (subject to limited exceptions) will affect all businesses in the UK which sell goods, services or digital content to consumers. This will include many traders in the construction industry.

The regulations are contained in the Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015, as amended by the Alternative Dispute Resolution for Consumer Disputes (Amendment) Regulations 2015 (which I will collectively call the Regulations).

This post looks at a number of issues, including who needs to comply with the Regulations, what traders (and consumers) need to do and the type of ADR envisaged by the Regulations. Continue reading

Tiksa Negeri
REUTERS | Tiksa Negeri

The previous post in this series on variations considered whether a contractor could be entitled to payment for implementing a change in the absence of a formal instruction. It discussed the fact that an employer may grant the contractor permission to alter the works and that this permission may open up a right to payment despite the lack of a formal order. For example, the employer’s communication may represent an agreement to pay for additional works under a collateral contract or a waiver of the normal requirement for a formal instruction as a pre-requisite to payment.

However, the employer may not give such permission and may point blank refuse to alter the scope. Where does this leave the contractor in a claim for payment for the changed works? Can the employer ever be under a positive duty to vary the scope and, if so, can this be relied upon by the contractor to trigger payment? Continue reading