REUTERS | Heinz-Peter Bader
REUTERS | Heinz-Peter Bader

A few weeks ago I was due to attend an event to mark the launch of the first edition of the CIC’s Low Value Disputes Model Adjudication Procedure (LVD MAP). However, like many other things this year, because of COVID-19, the event was cancelled and moved on-line instead. As a consequence, I think the launch has gone relatively unnoticed, so I thought I might change that with a few words about the new procedure. Continue reading

REUTERS | Toby Melville

“The distinguishing obligation of a fiduciary is the obligation of loyalty” (Lord Millet in Bristol and West Building Society v Mothew).

It is well-known that barristers and solicitors owe fiduciary duties to their clients (the core duty being that of loyalty) such that they must not act for a second client if that would put them in conflict with the interests of the first. But what about expert witnesses? And what about multi-national groups of expert witness companies, who offer expertise in a variety of specialisms? Are such companies different to barristers’ chambers whose members routinely act for opposing sides?

The TCC has recently grappled with these issues in A Company v X and others, granting an injunction to restrain a group of expert witness companies from providing both delay and quantum expert services, despite setting up different teams, in different countries and putting in place measures to protect confidentiality.  It is a case of some significance. Continue reading

REUTERS | Heinz-Peter Bader

Insofar as “smash and grab” disputes go, Broseley London Ltd v Prime Asset Management Ltd is simple and straightforward. However, the judgment touches upon an issue which is anything but straightforward: can an employer start a “true value” adjudication without first paying the notified sum?

For those who are new to “smash and grab” practice, Jonathan Cope’s blog, Implications of the Court of Appeal’s decision in S&T v Grove Developments and Gideon Scott Holland’s blog, Adjudication matures as it gets the key to the door are a good starting point. Continue reading

REUTERS | Peter Cziborra

Parties to construction contracts often include clauses in their contracts seeking to exclude claims for indirect and consequential losses, believing that such clauses are likely to prevent claims for financial losses such as lost profits and business interruption. Contracting parties may consider such financial losses to be beyond the ordinarily recoverable losses flowing from a breach (as compared to the actual cost of repairing defects, for example). However, it is unlikely that such exclusion clauses will bar a claim for this type of financial loss.

But is a change forthcoming? The TCC’s recent decision in 2 Entertain Video Ltd v Sony DADC Europe Ltd suggests judicial appetite for a change to the traditional and narrow interpretation of indirect and consequential loss exclusion clauses. Although the court’s decision accorded with the traditional interpretation, O’Farrell J considered that indirect and consequential loss exclusion clauses should be given their natural and ordinary interpretation while considering the contract as a whole and any relevant factual matrix. Continue reading

REUTERS | Max Rossi

I very much welcome the fact that the TCC has clearly been open for business as usual during the COVID-19 lockdown, and that we’ve seen a number of interesting judgments published, one of which is Flexidig Ltd v M&M Contractors (Europe) Ltd.

This was a case about the enforcement of an adjudicator’s decision (as so many are) and involved many of the usual arguments (as so many do), such as did the adjudicator have jurisdiction to reach the decision and was there a breach of the rules of natural justice? Unusually, the judge also had to consider an application to serve proceedings out of the jurisdiction, something I’m not really familiar with but, luckily, Helena White has already talked about that in her blog. That means I don’t need to mention whether enforcement proceedings should have been started in England or Northern Ireland, and leaves me to look at the jurisdiction and natural justice issues in more detail. Continue reading

REUTERS | Gleb Garanich

Last year Build UK (BUK) published its non-binding recommendations on the contract terms its members should (as a minimum) refrain from using. The recommendation had the commendable aim of forming “a new common ground between clients and the supply chain on contractual practice in the construction sector” with the key objectives being “to promote collaboration, encourage a fairer allocation of risk through the supply chain, and deliver better project outcomes”. In my May 2019 blog, Build UK’s recommendation on contract terms: a step in the right direction, I considered each of BUK’s recommendations in the context of then current market practice and concluded that, while there were a few areas that required further clarification, there was little with which I strongly disagreed.

Fast forward 12 months and BUK has published detailed guidance on its recommendations and their implementation, which puts helpful flesh on the bones. In this blog I look at that guidance and conclude that, despite my initial optimism, a number of BUK’s recommendations actually do represent material departures from current market practice that clients may struggle to get on board with. Continue reading

REUTERS | Leonhard Foeger

The use of unmanned aerial vehicles (UAVs) or drones, as they are more commonly known, as data collection platforms to service a diverse range of civilian and commercial uses is an area that has grown rapidly in recent years. This has been aided by a decrease in the cost and an increase in the reliability of the technology. It continues to be an area of extensive research and development.

In the current time of restrictions on site activities and methods of working, the use of drones for inspection is likely to increase. While data collection is a common and continuing use of drones in the construction industry, their potential goes much further. Continue reading

REUTERS | Yves Herman

It is day 38 of lockdown and a month since I last blogged. Although it is arguable that not a lot has happened in that time (after all, the COVID-19 lockdown continues and our freedom is still curtailed), I wonder if we are at the beginning of a permanent shift in the way people work.

A month ago I talked about how we were all getting used to being at home all the time, and outlined how I hoped people would act reasonably and be prepared to be flexible. On the whole, I think that has been the case (and I’m not going to name and shame anyone who I think hasn’t been reasonable in an adjudication before me!). Jefford J’s judgment in MillChris Developments Ltd v Waters has been useful in this regard (she refused to grant an injunction to prevent an adjudication from continuing, rejecting arguments that the lockdown was sufficient reason to postpone the adjudication until after the lockdown ended), as James Frampton explained. I’ve used it to “herd” the parties to agree a sensible timetable/compromise on a number of occasions.

I also discussed meetings and site visits, and thought I’d pick up on these two points today. Continue reading

REUTERS | Ricardo Moraes

In the recently published decision of Balfour Beatty Civil Engineering Ltd v Astec Projects Ltd (In Liquidation), a company in liquidation (Astec) was permitted to proceed with three adjudications on the basis that it satisfied conditions intended to bring the case within the exception established in Meadowside Building Developments v 12-18 Hill Street Management Company to the general rule in Bresco v Lonsdale.

In the pre-Coronavirus age, I wrote a blog post about issues that arose in Meadowside due to the nature of the third party funding in that litigation. Six months on, and in advance of the Supreme Court reaching a decision in the Bresco appeal, I consider the development of this line of authorities dealing with the third party funding of liquidation adjudications. Continue reading