REUTERS | Rick Wilking
September 18, 2018

Arbitration clause “trumps” Part 8 application to overturn adjudicator’s decision

REUTERS | Rick Wilking
September 18, 2018

Arbitration clause “trumps” Part 8 application to overturn adjudicator’s decision

When I was a kid, Top Trumps were all the rage. I know from my own boys that they still are. Back then, it was all about whether you had the fastest car or the most popular footballer (even Star Wars characters featured, but how did you decide if Hans Solo was better than Princess Leia?). Now, just about every topic is covered by a set of cards.

I mention this because a recent TCC judgment demonstrates that the arbitration clause in the JCT standard building contract can “trump” a Part 8 application for declaratory relief, with the court granting a stay of those Part 8 proceedings. Continue reading →

REUTERS | David Mdzinarishvili
September 10, 2018

Risky business: Offshore drilling and using force majeure as an exit route

A contract can be a long term commitment. Over the course of a contract, things happen. Circumstances change. Force majeure clauses generally allow parties to allocate contractual risk, by limiting liability, excusing performance or providing for termination, if unusual or unfortunate circumstances arise. However, the recent case of Seadrill v Tullow reminds us that it is not all that easy for a party to seek to avoid obligations it has freely undertaken. Continue reading →

REUTERS | Denis Balibouse
September 4, 2018

Vinci v Beumer: the case that keeps on giving (and giving)

It is the start of autumn and July seems a long way off now, with the summer holidays all over and the World Cup just a distant memory. Consequently, it may be easy to have forgotten about Vinci Construction UK Ltd v Beumer Group UK Ltd, which had its latest outing in the TCC at the end of that month. This time it was Jonathan Acton Davis QC (sitting as a deputy High Court judge) who enforced the adjudicator’s decision and dismissed Beumer’s (the sub-contractor) arguments that the adjudicator was in breach of the rules of natural justice.

I think that the interesting part of the case is the third natural justice argument (failure to disclose material) because it was very similar to (and based on) the natural justice argument that Vinci ran and succeeded with in the proceedings before Fraser J but, on this occasion, Beumer lost. Continue reading →

REUTERS | Navesh Chitrakar
August 29, 2018

Beware – wildlife on site!

A client recently called me in a panic. Their contractor had discovered a protected species of bird had set up home in the exact spot where they needed to carry out the next phase of works at one of their sites. No one on site was entirely confident on what the appropriate next steps should be and so the client, concerned about the potential consequences, had immediately instructed the contractor to suspend works and asked me to investigate.  Continue reading →

REUTERS | Navesh Chitrakar
August 21, 2018

Fraser J seeks an end to “preponderance of partisan experts”

I liked the classics at school and did rather well in them. When I last wrote about ICI v MMT, I referred to Hercules and Hydra. This time, I’m delving further into Greek mythology, with reference to Scylla and Charybdis, which is used in the context of the idiom “being between Scylla and Charybdis”. It means “having to choose between two evils” and is a bit like more well-known idioms such as “between the devil and the deep blue sea” and “between a rock and a hard place”.

It came to mind when I was reviewing some of Fraser J’s comments about the expert evidence in ICI v MMT. Continue reading →

REUTERS | Gleb Garanich
August 8, 2018

Concurrent affairs: North Midland Building Ltd v Cyden Homes

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
August 7, 2018

The pitfalls of bespoke ADR clauses

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
August 1, 2018

What are you implying? The role of implied terms in contract interpretation

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
August 1, 2018

What’s the damage? Revisiting the correct measure of loss in negligent surveyor cases

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 →