REUTERS | Kai Pfaffenbach
REUTERS | Kai Pfaffenbach

What, I hear you ask, am I doing writing about football? Well, despite the title of this blog, it’s actually about an arbitration and subsequent court proceedings that just happen to involve a football club. I think it’s interesting for a number of reasons, not least because it applies the Supreme Court’s findings in Halliburton Company v Chubb Bermuda Insurance Ltd, which I blogged about last year.  Continue reading

REUTERS | Vincent Kessler

As has been well-known in the industry for some time and is also now being picked up by the mainstream media, UK construction is currently under considerable pressure due to global shortages of key materials. The combination of a worldwide surge in demand for essential materials, as existing projects are revived and new projects are greenlit following the uncertainty of the pandemic, compounded with many other factors such as Brexit, congested transport routes, rises in shipping costs, labour shortages (particularly in the haulage sector) and even climate change have meant that UK builders are especially exposed. Key materials, including bagged cement, Scandinavian timber, steel and aluminium have all been affected and there does not appear to be any chance of relief, at least in the short-term.

Consequently, it is important that employers and contractors agree how to mitigate the risk to their projects of increased costs and delays as developments compete for a finite number of resources. Traditionally, employers would usually expect to pass the risk of obtaining materials onto the contractor and, more often than not in our experience, contractors would generally be willing to accept this position. However, we are increasingly seeing contractors becoming more reluctant to contract on this basis due to the uncertainties in the market. Continue reading

REUTERS | Brendan Mc

Since the COVID-19 pandemic began, a key question for practitioners has been whether COVID-19 constitutes a force majeure event and so entitles parties to relief under contracts that include force majeure provisions. Much has been written on how little case law there is on this topic and how English law does not recognise force majeure as a standalone concept.

What is not asked so often, but most certainly should be, is what factors the party deciding whether an event constitutes force majeure should have regard to when making that decision. As the recent case of Dwyer (UK Franchising) Ltd v Fredbar Ltd illustrates, here there is no lack of case law. When exercising discretion under a contract, English law has clear principles in place. Failure to exercise these can lead to repudiatory breach.

This blog takes a closer look at this case focusing on the force majeure elements. Continue reading

REUTERS | Dominic Ebenbichler

It is no coincidence that construction cases play a prominent role in many of the leading decisions concerning limitation. It is the nature of our work that problems have a tendency to emerge some time after the work was completed and, more than occasionally, new problems come to light after proceedings have commenced.

As construction litigators, we are therefore all no doubt familiar with having to draft an amendment to a claim that is, or might be, vulnerable to a limitation challenge. While we probably trust that we are familiar with the law on the point, many of us would likely turn to our reliable friend, the White Book, to remind ourselves of how the court might approach such an application. A couple of TCC decisions over this year suggest that this course of action might not reveal the full picture. Continue reading

REUTERS | Eloy Alonso

Doesn’t time fly. I can’t believe it is almost eight years since Practical Law published my blog on Parkwood Leisure Ltd v Laing O’Rourke Wales and West Ltd. As readers may recall, in that case Akenhead J decided that a collateral warranty (CW) given by Laing in favour of Parkwood was a construction contract for the purposes of the Construction Act 1996, and that accordingly Parkwood could pursue a defects claim under it by way of adjudication. I suggested that the decision was “simply wrong” and could have “highly undesirable ramifications” for the negotiation of CWs going forward.  (After an initial flurry, it seems that I may have been wrong on the second count, but let’s draw a veil over that for now.)

Fast forward to August 2021 and the recent case of Toppan Holdings Ltd and Abbey Healthcare (Mill Hill) Ltd v Simply Construct (UK) LLP. This has prompted my good friend Jonathan Cope (in his blog) to call for all CWs to include an express right to adjudicate. He suggests that this is “long overdue” and doubts whether such a provision should be controversial. But is he right? Has anything changed since 2013, and does Toppan affect the position? Continue reading

REUTERS | REUTERS/Goran Tomasevic

Private finance initiative (PFI) projects tend to be long-term, usually lasting for a period of 25 years or more. There is an active secondary market for equity interests in PFI projects: original project developers exit and new longer term investors hold projects to maturity. Notwithstanding this longer-term investment horizon, as time goes on, it is only natural that parties tend to focus more on day-to-day operations and portfolio management and less around the ultimate backstop of expiry.

However, contract expiry is becoming an increasingly pressing issue. There are over 550 current PFI contracts. Of those, 78 projects are due to expire before December 2027 and a further 91 projects will expire in 2028-2030. The nature of PFI contracts means that significant claims can arise in relation to hand-over of assets. Typical PFI contract structures employ limited equity and special purchase vehicles (SPVs). In addition, construction contractors have long since exited from their typical 12 year defects liability period in a 25+ year concession. This means that long-term investors can be exposed to contractual liabilities on expiry.

On 16 August 2021, the Infrastructure and Projects Authority (IPA) released a support plan for contracting authorities, Managing the Risks of PFI Contract Expiry. The support plan aims to prepare public authorities for the expiry of PFI contracts and the handover of PFI assets. The IPA’s plan emphasises the importance of early engagement with the private sector and aims to smooth the transition process by undertaking a structured process of engagement with private sector counter-parties. Continue reading

REUTERS | Peter Cziborra

The scope of duty and the extent of liability of professional advisers are two hotly contested issues at the core of many a dispute between professional advisers and their clients in negligence claims.

For the last 24 years, the judgment in South Australia Asset Management Corp v York Montague Ltd, popularly referred to as SAAMCO, has been the leading authority setting out the principle of scope of responsibility that a court must consider when assessing a negligent adviser’s responsibility for a claimant’s losses. Briefly put, if the conduct complained of falls outside that scope, there may be no claim at all (the SAAMCO principle).

Over the years, multiple views have developed as practitioners struggled to apply the SAAMCO principle to differing facts. Claimants have often struggled to construct a “SAAMCO counterfactual” showing that the correct information/advice would have resulted in no loss.

Many will, therefore, welcome the recent clarification provided by the Supreme Court in Manchester Building Society v Grant Thornton UK LLP and Khan v Meadows. A majority approved a test comprising six questions formulated by Lord Hodge and Lord Sales (who gave the lead judgment). Continue reading

REUTERS | Brendan Mc

This post is the latest in a series covering issues that frequently arise in international arbitration, each with a specific regional focus. It addresses issues in Brazil, where the use of dispute boards is common as part of a tiered dispute resolution mechanism. Continue reading

REUTERS | Hannah Beier

Beyond the Scottish courts’ adjudication enforcement procedure, I’m not particularly familiar with the processes they follow. Therefore, I was interested to see the judgment in Graeme W Cheyne (Builders) Ltd v Michael Duthie Wilson, which involved the Sheriff Appeal Court (SAC) reviewing a sheriff’s decision to enforce an adjudicator’s decision. I’m not sure I’d heard of the SAC but I suppose it is a bit like the English High Court reviewing a judgment handed down in a County Court. It just isn’t something we see very often. Continue reading

REUTERS |

When it comes to replenishing my wardrobe, I have little patience for the careful selection of clothes for style and fit (this should come as no surprise). Instead, I am one of those who buys a job-lot of clothes once or twice a year to see me through the next couple of seasons. When I may not have been sufficiently realistic about size, I rely on the ability to change my mind and send things back or exchange for something more appropriate.

However, do the same with experts at your peril!

The case of Matthew Rogerson (t/a Cottesmore Hotel, Golf and Country Club) v Eco Top Heat & Power Ltd provides a very useful reminder of the court’s approach to expert shopping. As well as a recap on that approach, it invites reflection on how we go about selecting, instructing and managing experts when proceedings are anticipated. Continue reading