REUTERS | Shutterstock
REUTERS | Shutterstock

Although alliance contracting has been used in the UK over the past 15 years, it has never quite won the affections of contracting parties here which has been achieved in other jurisdictions.  However, recent trends suggest that the move towards alliance contracting is gaining momentum. Network Rail has already moved to the alliance model for major infrastructure works and the Department of Health has used the alliance model for a major IT and services outsourcing project for the NHS. Continue reading

Anindito Mukherjee
REUTERS | Anindito Mukherjee

Well, in the words of Bananarama, it’s been a cruel cruel summer: well, at least August has. The weather has been shocking in the UK and I’ve heard more than one person say that they’ve already put their central heating on. Not only that, Matt and I have only had one TCC case to write about. Consequently, this week I thought I would look further afield, and specifically to Hong Kong.

Earlier in the summer, the Government of Hong Kong published a consultation on the introduction of Security of Payment legislation (SOPL) in the region, including statutory adjudication. I’ve been lucky enough to be invited to Hong Kong later this year to talk to prospective adjudicators on decision writing, so I’ve looked at the consultation in some detail. Continue reading

Ulises Rodriguez
REUTERS | Ulises Rodriguez

Sir Isaac Newton (attributed):

I don’t know what I may seem to the world, but as to myself, I seem to have been only like a boy playing on the sea-shore and diverting myself in now and then finding a smoother pebble or a prettier shell than ordinary, whilst the great ocean of truth lay all undiscovered before me.”

August, a month of languid summer days spent by many on the beaches of faraway shores. For those who have remained closer to home, it has been a quiet month, and it feels like the calm before the storm of autumn (although, for some, it may feel like that has already arrived). Continue reading

REUTERS | Corbis

The TCC’s latest judgment on cost estimates shows once again that it is leading the way in keeping legal costs down. In GSK Project Management Ltd v QPR Holdings Ltd, Stuart-Smith J found it:

“…hard to imagine anything more sterile than arguing about a grossly excessive cost estimate.”

It is possible that he hadn’t imagined a blog about a grossly excessive cost estimate!

If the subject matter is sterile, Stuart-Smith J’s comments about the claimant’s costs budget were anything but. His judgment should be required reading for lawyers everywhere. Having worked through a budget which was “so disproportionate to the sums at stake or the length and complexity of the case that something has clearly gone wrong”, and described the estimated hours as “quite simply absurd” and “astonishing”, he ordered GSK to pay QPR’s costs and directed GSK’s solicitors to inform their client of the terms of his judgment. Continue reading

Denis Balibouse
REUTERS | Denis Balibouse

It’s not clear whether the adjudicator in Henia Investments v Beck Interiors was dealing with a “smash and grab” adjudication, since the judgment contains so few facts about that aspect of the parties’ dispute. However, I think the case is yet another example of the tide turning against those who want to “smash and grab”, and reflects the continuing moves by the TCC to supervise our industry where it perceives there may be an injustice or gamesmanship. Continue reading

Juan Carlos Ulate
REUTERS | Juan Carlos Ulate

Just over a year ago, I wrote a piece for this blog considering where the burden of proof lay if an adjudicator’s decision was challenged in subsequent litigation. If the adjudicator had, for example, decided that a contractor was entitled to additional payment for a claimed variation, would the employer have to disprove that entitlement, or would the contractor have to prove it in litigation once a challenge was instituted? The orthodox position had always been thought to be the latter, but obiter comments by Gloster LJ in Walker Construction v Quayside Homes suggesting that the former was correct had considerably muddied the waters.

Now, of course, we have the Supreme Court’s decision in Aspect v HigginsI thought I would re-visit my earlier blog to see where we are in light of that decision, and whether the position is any clearer. While those who were hoping that Aspect would address this important issue directly will be disappointed, I do think that any attempt to use an adjudicator’s decision to reverse the burden of proof is, notwithstanding Gloster LJ’s comments, ultimately unlikely to be successful. Continue reading

Athar Hussain
REUTERS | Athar Hussain

Expert determination is used to resolve many types of disputes, particularly disputes of a specialist or technical nature. It is a binding process that can be a quick and effective means of determining such disputes, but only when it works. When it goes wrong, as with many other things, it can become costly and time consuming to sort out.

Last year I looked at two Court of Appeal judgments on expert determination:

  • Shafi v Rutherford, where Floyd LJ held that the expert’s determination was invalid and unenforceable because the expert had misinterpreted his jurisdiction.
  • Premier Telecom  v Webb, where Moore-Bick LJ held that the expert’s determination was binding as the expert had not departed from his mandate.

The question of whether the expert did what he was appointed to do has recently been considered by the Court of Appeal, this time in Begum v Hossain. Continue reading

Ali Jarekji
REUTERS | Ali Jarekji

The lines between mistake, implied terms and ambiguity are blurred in Arnold v Britton.

In some ways adjudicators have it easy. Their decisions are difficult to challenge, private and are unlikely to be of any significance outside the scope of the project in question. This allows them a certain freedom to give a decision that, provided that it is legally sound, is fair. The same does not apply to the members of the Supreme Court, whose words will be pored over for guidance for decades to come.

This appears to have been in the minds of their Lordships when hearing the recent case of Arnold v Britton. Continue reading