REUTERS | Gleb Garanich

Concurrent delay is something that the courts tell us is exceedingly rare. And yet, it is a subject which can occupy much time when parties are in dispute about entitlement to an extension of time.

The Court of Appeal has now considered whether parties to a construction contract can decide how to apportion risk in the event of concurrent delay. The question for the court was whether such clauses offend the prevention principle and cause time to be at large. Continue reading

REUTERS | Ricardo Moraes

For the first time in quite a while I am in the enviable position of having more than one adjudication enforcement case to choose to write about this week.  In the end I plumped for Beach Homes v Hazell and Hazell as it raises some interesting points about bespoke dispute resolution clauses. It is a judgment of Mr Jonathan Acton Davis QC, one of the army of Deputy High Court judges currently sitting in the TCC. Continue reading

REUTERS | Nacho Doce

Recent cases, including the Court of Appeal’s judgment in Bou-Simon v BGC Brokers LP and the (as yet unreported) case of Harrow LBC v Engie Regeneration (Apollo) Ltd (2018) (TCC), provide a useful reminder of the strict constraints on implying terms into a commercial contract.

Courts can imply terms into a contract in order to fill a gap in the drafting, thereby ensuring that the contract reflects the contracting parties’ intentions. However, these recent decisions have reinforced the limitations and rules governing this power to imply terms. Continue reading

REUTERS | Jason Reed

As construction lawyers, most of us have had experience with claims concerning the financial loss and/or damage to property arising from a negligent survey of a house. The facts of such cases tend to follow a pattern:

  • Prospective purchasers instruct a surveyor to produce a report before deciding whether to buy a particular property.
  • The report concludes that the house is in sound structural condition.
  • The prospective purchasers rely on said report in deciding to purchase the property.
  • After moving in, they discover that in fact the house suffers from damage, defects or some other risk not disclosed in the survey.

Often, the cost of addressing such problems, once discovered, is prohibitive, prompting homeowners to bring claims against their former surveyor in breach of contract and/or negligence. Assuming that the failure to spot a particular risk gives rise to liability, the next question facing the court is the appropriate measure of loss.

The recent judgment of Birss J in Moore and another v National Westminster Bank provides welcome clarity to this area of law. While the judgment faithfully applies the long-standing ratio of Philips v Ward, it misses the opportunity to critically analyse a counterintuitive line of authorities and provide guidance as to when they can be disapplied.  Continue reading

REUTERS | Yves Herman

I’ve said before that I like reading Fraser J’s judgments because he has a nice turn of phrase and a penchant for plain talking. This is highlighted in his latest ICI v MMT judgment, where the following caught my eye:

“I do not share the good cheer of Jackson J at such a task.”

He was talking about how, in Multiplex v Cleveland Bridge, Jackson J was asked to value every piece of steel work in Wembley Stadium and had “expressed himself as ready cheerfully to undertake that task”. Fraser J said he was being asked to value over 42,000 metres of pipework installed in a paint manufacturing facility, where a great deal of work had to be redone as the design changed, and where a great deal of work was directly instructed on site. It is perhaps understandable why he didn’t share Jackson J’s good cheer. I’m not sure I would either.

Last time I considered why this piece of litigation “stands as something of an advertisement for adjudication”. Now I’m going to focus on the parties’ use of Scott Schedules. Continue reading

REUTERS | Thomas Peter

The trouble with collateral warranties (CWs) is that they aren’t very interesting. Construction lawyers typically overdose on them as trainees and have had enough of them by the time they qualify. A brief foray into the world of third party rights and they are ready to move on to higher things, leaving the following cohort of trainees to pick up the next wave of CWs.

Some sections of the industry tend to pooh-pooh them as well. A vocal corner of the insurance world, with no vested interest to declare (other than a desire to sell latent defects insurance), persists in declaring that CWs “aren’t worth the paper they are written on”. (Like oral agreements, as some wag once said.) Decisions such as Parkwood, which I have previously blogged about, don’t exactly help to enhance their reputation. And the ritual pinhead dancing around net contribution and “no greater liability” clauses only reinforces the notion that CWs are little more than exercises in futility, designed to occupy the time of junior construction lawyers while their more glamorous corporate and finance colleagues get on with “real” work.  Continue reading

REUTERS |

Stuart-Smith J’s judgment in Lancashire Care NHS Foundation Trust & Blackpool Teaching Hospitals NHS Foundation Trust v Lancashire County Council provides helpful guidance on how not to conduct moderation meetings and highlights the defendant’s failure to provide adequate reasons for its decision making. What it does not provide is a finding on who deserved to win the contract.

The judgment follows an expedited trial on a procurement challenge brought under the Public Contracts Regulations 2015. The court found that the decision to award a £104 million contract for the provision of community services under the Healthy Child Programme to Virgin Care Services Ltd should be set aside.

This post looks at the lessons in process and record keeping, and considers why the court set aside the decision without carrying out a rescoring exercise. Continue reading

REUTERS | Thomas Peter

1 October 2019 will see a significant shake-up of the VAT rules in the construction sector. New rules will come into force on that date which will, in many cases, require the recipient of the supply of construction services, rather than the supplier, to account for VAT on the supply. Large and small businesses making standard-rated or reduced-rated supplies of construction services may be impacted. There may be cash flow implications, which could be positive or negative, for the businesses concerned.

HMRC is to issue guidance on the new rules. Continue reading

REUTERS | Alexander Kuznetsov

As full-time mediators, we often co-mediate. In this post, we discuss why and how parties are using co-mediation.

Mediation and multi-party disputes

For all the well-known reasons, parties to any dispute will want to consider mediation.

Where there are multiple parties, such as businesses who have contributed design, work or materials to the same project or homeowners all affected by the same event, the desire to settle is obvious. A greater number of parties will bring greater risk: each party’s legal costs are likely to be increased by the fact that they are fighting on multiple fronts. At trial one party may ultimately be ordered to pay everyone’s costs.

Often no-one dares attempt unilateral settlement for fear of being brought back into the party by way of contribution proceedings by the remaining parties. Drafting a watertight Calderbank offer is challenging. The parties therefore all go forward in the litigation together. Continue reading