REUTERS | Leonhard Foeger
REUTERS | Leonhard Foeger

A couple of weeks ago, Matt wrote about his tenth anniversary of blogging for Practical Law Construction. He mentioned my blogging birthday was also coming up. At the time, I wasn’t sure if I’d do a 10th birthday blog, after all, with Matt and John Hughes-D’Aeth celebrating the 10th anniversary, what more could there be to say?

As Matt talked about issues affecting adjudicators, and John reviewed a few of the important cases he’d written about over the last ten years, I thought I’d consider a few of my blogging “highlights”. I make no apologies for what is (and isn’t) included. It really is a random selection from the last ten years and is intended to illustrate the diversity of topics I’ve touched upon. Continue reading

REUTERS | Athar Hussain

This year, following the celebration of 100 years of women’s suffrage, and the first occasion where a female majority heard a Supreme Court case, we have seen a greater focus on diversity.

The legal sector has recognised that we should encourage and attract a workforce that exhibits a range of differences which include gender, sexual orientation, disability, culture and ethnicity. It is strongly argued that this is reflective of society and serves to achieve higher standards, fairness and efficiency.

The Construction Industry Council and organisations such as the National Association of Women in Construction have frequently reported that diversity is central to innovation in construction and the future of the sector. It is also well documented that a diverse workforce is of great benefit to growth, new ideas and also profit generation. Continue reading

REUTERS | Yuri Maltsev

“Never has a Court of Appeal judgment been so eagerly awaited by the construction law community as the appeal in S&T (UK) Ltd v Grove Developments Ltd.”

I admit that this might be somewhat of an exaggeration, but I’ve certainly been keen to read it ever since I heard that Coulson J’s (as he was then) judgment was being appealed. I blogged about it at the time.

In a nutshell, S&T lost its appeal, with the Court of Appeal agreeing with Coulson J that:

  • Grove’s pay less notice complied with the requirements of the contract.
  • Grove is entitled to commence a separate adjudication seeking a decision as to the “true” value of its interim application, with the result that, contrary to ISG v Seevic, an employer can start an adjudication concerning the correct value of the sum due, and is not deemed to have agreed the valuation because of a failure to serve a payment or pay less notice.

Continue reading

REUTERS | Esam Omran Al-Fetori

In North Midland Building Ltd v Cyden Homes, the Court of Appeal held that parties to a construction contract are free to apportion risk in the event of concurrent delay. For more detail on that case, see my colleague, Alexandra Clough’s blog post, Concurrent affairs: North Midland Building Ltd v Cyden Homes.

Cyden (as employer) entered into a construction contract with North Midland (as contractor) based on the JCT Design and Build 2005 standard form contract. An amendment to clause 2.25.1.3 stated:

(b) any delay caused by a Relevant Event which is concurrent with another delay for which the Contractor is responsible shall not be taken into account”.

One of the Relevant Events was “acts of prevention by the employer. In other words, clause 2.25.1.3 provided that, if the employer prevented progress of the works and caused delay, but the contractor was also responsible for a concurrent delay, the contractor would not be entitled to an extension of time. The Court of Appeal, upholding the first instance decision, held that such a clause is enforceable and does not offend any principle of English law, including the prevention principle. Continue reading

REUTERS | Kim Hong

In the beginning…

Happy birthday, Practical Law Construction! A lot has changed in the ten years since the “blog page” came into being.

In October 2008 we were living in St Albans, our son was still at school and Labour were in power. Lehman Brothers had recently collapsed and the global financial crisis was in full swing. Liverpool were top of the Premier League, with Aston Villa and Hull City in the top five. Tottenham Hotspur were bottom and, having sacked Juande Ramos, had just hired Harry Redknapp to revive their fortunes. Lewis Hamilton was on the verge of being crowned F1 world champion (well, not everything changes).

Meanwhile the Government was consulting on proposed changes to the Construction Act, responding to concerns (expressed loudly by Rudi Klein and others) that the legislation didn’t offer sufficient protection to the “little guy” and needed beefing up in order to achieve its objectives. (Some of us look back wistfully to a time without pay less notices, when Tolent clauses roamed the earth devouring any small sub-contractor who dared to challenge them.)

It was against that background that I was asked to post my first blog on the new Practical Law Construction web page. The subject-matter, “Packaging construction and engineering documents“, is just as relevant today. Little did I know that, ten years on, both Practical Law and I would still be going strong.  Continue reading

REUTERS | Maxim Shemetov

Earlier this year, I was reminded by those lovely people at Practical Law Construction that I’ve been blogging for them for ten years, ever since they launched in October 2008. They told me this is my 320th post, which works out at an average of 2.66 posts a month. If only I had a £1 for every word… Assuming an average of 1,000 words a post, I might not be able to retire just yet, but it sure would go some way to financing a few nice holidays!

My first post was published on 24 October 2008 and was called “How to stay on the right side of the adjudicator“. I started off by reminding everyone that adjudicators are only human (it took Rag ‘n’ Bone man another eight years to sing about this) and that post contained a lot of “don’ts” (eleven, I counted). My last post (before today), looked at the multiple contracts point (when substance and jurisdiction overlap), raised before HHJ Stephen Davies in Rawlings Consulting (UK) Ltd v Maelor Foods Ltd. It is a principle that has been around almost as long as I’ve been blogging!

Jonathan’s 10th anniversary is almost upon us too, as his first piece went live just a few weeks after mine, on 12 November 2008. He looked at the Construction Contracts Bill 2008, which soon fell by the wayside and got replaced by what eventually became known as the ever-so-easy-to-remember LDEDC Act 2011!

And in between? Well, I think we’ve covered the A-Z of adjudication and much more besides.  Continue reading

REUTERS | Siphiwe Sibeko

Employers under construction contracts often find themselves under time pressure to get started with construction of their projects prior to concluding negotiations with their preferred contractor and before the building contract is entered into. In such a scenario, employers commonly choose to rely on a letter of intent. This should give the contractor comfort to proceed with certain elements of the construction works, while the parties continue to negotiate the full contract terms.

Unfortunately not all “letters of intent” are clearly formulated in advance, and the parties may find themselves proceeding with the works on the basis of a series of exchanges and correspondence, as was the case in Arcadis Consulting (UK) Ltd v AMEC (BSC) Ltd. Continue reading

REUTERS |

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