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I’ve not long returned from the Windy City where I attended the 8th International Society of Construction Law Conference.  I chaired a session titled “Bringing Order To The Delay Melee: Understanding the SCL Delay & Disruption Protocol and AACE RP 29R-03”.

Most of you will be aware of the SCL Protocol, which is now in its second edition, but I would hazard a guess that many of you haven’t come across the catchily titled AACE RP 29R-03 before. It is the Advancement of Cost Engineering’s (AACE) International Recommended Practice No. 29R-03 on Forensic Schedule Analysis.

While AACE RP 29R-03 is very different to the Protocol and focuses on the recommended steps for forensic programme delay analysis, the speakers did an excellent job of summarising how the two documents deal with some of the common issues relating to delay, one of which is concurrency. That got me thinking about the Court of Appeal’s recent judgment in North Midland Building Ltd v Cyden Homes Ltd, and the implications it will have on claims for extension of time.  Will it really have the impact that some commentators are suggesting? Continue reading

REUTERS | Heinz-Peter Bader

The Court of Appeal has come to the aid of Arcadis Consulting (UK) Ltd by overturning Coulson J’s judgment in ​Arcadis Consulting (UK) Ltd v AMEC (BSC) Ltd – a case described by the judge as one “with something of a sting in its tail”. The sting in question was Coulson J’s finding that a contract between Arcadis and AMEC did not incorporate any term that limited Arcadis’ liability. As a result, Arcadis faced a potential loss of £40 million. Continue reading

REUTERS | Andrew Winning

Some of the world’s most iconic buildings were conceived as a result of architectural competitions. You may be surprised how often such competitions result in controversy.

Jorn Utzon submitted his winning concept for the new opera house in Sydney in the mid-1950s. He walked away from the project 11 years later (7 years before its grand opening), famously calling it the “Malice in Blunderland” project. Political changes, differences of opinion over procurement, and the realities of turning a groundbreaking concept into something buildable all took their toll. Continue reading

REUTERS | Kai Pfaffenbach

The last time I looked at the dispute between Rawlings Consulting (UK) Ltd and Maelor Foods Ltd, I was talking about HHJ Eyre’s judgment and how the arbitration clause in a JCT standard building contract can “trump” a Part 8 application for declaratory relief.

This time, I’m looking at HHJ Stephen Davies’ judgment and Maelor’s (the employer) jurisdictional challenge, based on the argument that the dispute which Rawlings (the contractor) referred to adjudication arose under more than one contract.  Continue reading

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Last year, a developer client raised concerns about the solvency of its main contractor, Carillion. With over 50% of the works still to be completed, the client wanted some advice as to how it could manage the risks (legally and practically) if the contractor did go “pop”. In January this year, the concerns became a reality. This blog addresses these key questions and what followed in the wake of Carillion’s demise. Continue reading

REUTERS | Rick Wilking

When I was a kid, Top Trumps were all the rage. I know from my own boys that they still are. Back then, it was all about whether you had the fastest car or the most popular footballer (even Star Wars characters featured, but how did you decide if Hans Solo was better than Princess Leia?). Now, just about every topic is covered by a set of cards.

I mention this because a recent TCC judgment demonstrates that the arbitration clause in the JCT standard building contract can “trump” a Part 8 application for declaratory relief, with the court granting a stay of those Part 8 proceedings. Continue reading

REUTERS | David Mdzinarishvili

A contract can be a long term commitment. Over the course of a contract, things happen. Circumstances change. Force majeure clauses generally allow parties to allocate contractual risk, by limiting liability, excusing performance or providing for termination, if unusual or unfortunate circumstances arise. However, the recent case of Seadrill v Tullow reminds us that it is not all that easy for a party to seek to avoid obligations it has freely undertaken. Continue reading

REUTERS | Denis Balibouse

It is the start of autumn and July seems a long way off now, with the summer holidays all over and the World Cup just a distant memory. Consequently, it may be easy to have forgotten about Vinci Construction UK Ltd v Beumer Group UK Ltd, which had its latest outing in the TCC at the end of that month. This time it was Jonathan Acton Davis QC (sitting as a deputy High Court judge) who enforced the adjudicator’s decision and dismissed Beumer’s (the sub-contractor) arguments that the adjudicator was in breach of the rules of natural justice.

I think that the interesting part of the case is the third natural justice argument (failure to disclose material) because it was very similar to (and based on) the natural justice argument that Vinci ran and succeeded with in the proceedings before Fraser J but, on this occasion, Beumer lost. Continue reading

REUTERS | Navesh Chitrakar

A client recently called me in a panic. Their contractor had discovered a protected species of bird had set up home in the exact spot where they needed to carry out the next phase of works at one of their sites. No one on site was entirely confident on what the appropriate next steps should be and so the client, concerned about the potential consequences, had immediately instructed the contractor to suspend works and asked me to investigate.  Continue reading

REUTERS | Navesh Chitrakar

I liked the classics at school and did rather well in them. When I last wrote about ICI v MMT, I referred to Hercules and Hydra. This time, I’m delving further into Greek mythology, with reference to Scylla and Charybdis, which is used in the context of the idiom “being between Scylla and Charybdis”. It means “having to choose between two evils” and is a bit like more well-known idioms such as “between the devil and the deep blue sea” and “between a rock and a hard place”.

It came to mind when I was reviewing some of Fraser J’s comments about the expert evidence in ICI v MMT. Continue reading