REUTERS | Mark Blinch

If you think of Canada, what do you think about? Maple syrup, ice hockey, skiing, Whistler, Bryan Adams, Celine Dion, Justin Beiber?

It probably depends on your age as much as anything. However, what you are unlikely to think about is the Latham Report from 1994. It is unsurprising really, since the two are unrelated.

I mention this because I had a chat with a chap from Ontario the other week. You may think there is nothing unusual in that, after all, London is a multi-cultural city and construction is an industry that attracts professionals from all around the world. However, there was more to it than that. This chap was part of a working party that is carrying out a review of Ontario’s Construction Lien Act. As part of that review, Ontario is considering introducing a prompt payment system and implementing adjudication. Continue reading

REUTERS | Kim Kyung-Hoon

The right extension

There has been some controversy over the decision of the Court of Appeal in Carillion v Emcor in February. The case broke new ground in that it was contended (apparently for the first time) that an extension of time clause could result in a non-contiguous extension of time being granted. This phrase refers to an extension of time for a period which is not adjacent to the then current completion date but rather relates only to a later period. It would therefore leave the contractor (or in this case the sub-contractor) liable for the period of delay between the completion date and the start of the extension period. Continue reading

REUTERS | Thomas Peter

Big sheds (by which I mean warehouses, logistics hubs, fulfilment centres and the like) are hot property right now. Industrial floor space is in short supply due to the slowdown in construction during the last recession, and demand is exceptionally high due to the rise of e-commerce and online retailers promising ever-shorter delivery times. Recent reports suggest that over 1.3m sq ft of additional industrial floor space is required each year in London alone, where just eight months’ of supply remains based on current levels of take-up.

This unprecedented demand coincides with a weak pound, which has caused an uptick in overseas investment, and prevailing market uncertainty (whether due to the EU referendum, the general election or simply our position in the economic cycle) that appears to be driving investors towards “safer” alternative assets such as light industrial, build to rent and student housing.
Continue reading

REUTERS | Shailesh Andrade

It often feels like it is feast or famine when it comes to cases to write about on this blog. We appear to be in a stage of famine at the moment, and I’m not exactly sure why. Certainly it isn’t because parties have stopped adjudicating (because, if your recent experience is anything like mine, you will know that they haven’t) or because paying parties have started paying up (because I’m sure that leopard hasn’t changed its spots either). The current drought therefore leads me to cover a case that is very short (only 18 paragraphs) and dates from February: Structure Consulting Ltd v Maroush Food Production Ltd. Continue reading

REUTERS | Jason Cairnduff

There are a number of interesting aspects to HHJ Keyser QC’s judgment in Dawnus Construction Holdings v Amey LG Ltd, not least that during the course of the project, the parties referred four separate disputes to four different adjudicators. That makes it a really good example of serial adjudication, if ever I saw one. It also demonstrates some of the difficulties that can arise on construction projects, particularly when parties seek to incorporate main contract terms into a sub-contract. Continue reading

REUTERS | Toru Hanoi

The FIDIC Client/Consultant Model Services Agreement (fourth edition, 2006) – usually known as the White Book – was a rather frustrating form for lawyers. Happily, the new White Book (fifth edition, 2017) addresses some of the frustrations and is a more balanced starting point.

The form was particularly frustrating for those advising employer clients, who assumed that it would be consistent with the FIDIC construction contracts and therefore was practically plug-and-play with the 1999 Rainbow Suite. This view was often encouraged by consultants who advised a FIDIC procurement route and then proffered the White Book as the appropriate form of contract for their own appointment.

Employers were surprised that it was not consistent and that their liability to the contractor for any poor performance of the engineer, could not be passed on to the party actually responsible. In addition, they were surprised at the sheer volume of amendments required to protect their legitimate interests. “What, then, is the use of a standard form?”, they would ask. A perfectly reasonable question. Continue reading

REUTERS | Yuya Shino

Shakepeare, Sonnets:

“Shall I compare thee to a summer’s day? Thou art more lovely and more temperate: rough winds do shake the darling buds of May.”

It isn’t often that we resort to Shakespeare on this blog and, given the wind and rain of early May, something from the Tempest may have been more apt. However, temperatures are rising as the sun is shining and so it seemed apt to start on a sunny note! Continue reading

REUTERS | Jean-Paul Pelissier

A couple of years ago I blogged about the Court of Appeal’s decision in Gard Marine and Energy Ltd v China National Chartering Company Ltd, a rather complicated charterparty case. In that blog I noted that the Court of Appeal agreed with my view that insurance and subrogation can be a tricky business. The Supreme Court has now given its decision in this case and it seems they too are of the same view: the judges were split 3:2 on the issue.

Co-insurance is particularly relevant to the construction industry because of the multi-party nature of building projects and the many different insurable interests that co-exist in the same asset(s). As Lord Sumption pointed out in his judgment:

The business context in which this has most commonly arisen is the co-insurance of employer, contractor and subcontractors under standard forms of building contract.”

The judgment means that the courts are more likely to interpret insurance clauses as relieving a party of liability for matters within the scope of the policy, even if insurance is not effected or there is a shortfall in insurance proceeds. Continue reading