REUTERS | David Mdzinarishvili
July 28, 2017

Revisiting reasonable skill and care: have construction professionals lost Bolam protection without even noticing?

REUTERS | David Mdzinarishvili
July 28, 2017

Revisiting reasonable skill and care: have construction professionals lost Bolam protection without even noticing?

In recent years there has been increasing interest as to whether construction professionals need to produce an end design that is fit for purpose or simply to show that they exercised reasonable skill and care. The Court of Appeal’s decision to overturn the first instance judgment in MT Hojgaard v Eon (and the first instance decision of Coulson J in MW High Tech v Haase), dampened the excitement somewhat by emphasising the orthodox position that, absent something really quite categorical in the terms, it is the standard of reasonable skill and care that applies.

If construction professionals (and their insurers) gave a sigh of relief at those decisions, then they might want a stiff drink before reading any further. Continue reading →

REUTERS | Reuters
July 26, 2017

NEC4 and standard form sociology

As everyone who is anyone knows, the NEC4 suite was launched in London last month. The event on 22 June was quite a draw: I can’t recall our clients ever before attending in such numbers the official unveiling of a standard form contract. That is usually a niche pastime. It is testament to just how deeply the NEC forms have penetrated certain sectors, a success allied to NEC’s powerful marketing.

The whole thing feels like the launch of a new Apple product. The sense of anticipation. The buzz. Dare I say it – even just a little hype (though I rather admire anyone who can energise the marketing of standard forms). One understands that other, more analogue, contract forms are still available. Continue reading →

REUTERS | Kai Pfaffenbach
July 25, 2017

When two judges go to war (on experts)

For those of you not old enough to remember, back in the 1980’s, Frankie goes to Hollywood released a song called “Two Tribes”, which featured the line, “When two tribes go to war”. Having recently read Fraser J’s judgment in ICI v Merit and Coulson J’s judgment in Bank of Ireland v Watts, and given their comments about experts, it seemed apt to borrow from the song for my title. (Arguably it should have been three judges if we take into account Stuart-Smith J’s comments in 25 OBS (Nominees1) v Lend Lease, but that spoils the title!)

This post focuses on what Coulson J had to say about experts in Bank of Ireland v Watts, I’ll save ICI v Merit (and the project monitoring angle in Bank of Ireland) for another day (and will leave others to share their thoughts on 25 OBS (Nominees1) v Lend Lease).

It isn’t the first time Matt or I have commented on the behaviour of experts (for example, see Twelve reasons why expert’s evidence was “entirely worthless” and Experts again), and it certainly will not be the last! Continue reading →

REUTERS | Robert Pratta
July 19, 2017

Glen Water and the unintended notice that nobody noticed

To be is to be perceived. The 18th century philosopher George Berkeley found himself pondering whether a tree still exists if there is no-one to perceive it. In the recent case of Glen Water v Northern Ireland Water a similar question came up regarding notices. Can a letter be a notice if neither party perceived it as such? Are notices like philosophical trees? Continue reading →

REUTERS | Rodrigo Garrido
July 18, 2017

Cherry picking defence was “odd (and potentially risky)” approach

Earlier this year, I wrote about O’Farrell J’s judgment in Mailbox (Birmingham) Ltd v Galliford Try Construction Ltd. That case was all about legal and equitable assignment.

The parties have now been back before the court, this time in front of Coulson J, and have been arguing about the scope of two adjudications. The first concerned Mailbox’s claim for liquidated damages (which O’Farrell J had previously considered and I wrote about), the second was about Galliford Try’s subsequent extension of time claim.

As I’m sure you are thinking, it all boiled down to a question of what the crystallised dispute was and whether the second adjudicator had jurisdiction. Continue reading →

REUTERS | Amir Cohen
July 11, 2017

To what extent can and should adjudicators ask questions of the parties?

Although I have never done so myself, it is clearly acceptable for an adjudicator to ask parties to comment on a case or other point of law that neither has mentioned in their submissions. It is also clearly acceptable for an adjudicator to ask parties to expand on and/or clarify contentions made in their submissions, and this is something I do regularly. Indeed, I think that it is essential for adjudicators to ask parties to clarify points where they are uncertain as to the meaning of parts of the submissions. Otherwise, how can an adjudicator ensure that the process is fair? This is particularly so given that the vast majority of adjudications these days proceed on a documents-only basis.

It was with this is mind that I read with interest Turner J’s judgment in Miley v Friends Life Ltd. Turner J was dealing with the defendant’s application to recuse himself on the grounds of apparent bias. It arose following an email he had sent to the parties identifying issues that he wanted assistance on. Continue reading →

REUTERS | Lisi Niesner
July 7, 2017

Building Qatar: diplomacy and the contractual bargain

In June 2017, in an unprecedented move by Saudi Arabia, Bahrain, Egypt, the UAE and Libya, the State of Qatar was subject to an economic blockade. Overnight, 50% of the GCC had closed land, sea and air connections to the peninsular. A list of 13 demands have been issued to the Emiri Diwan in Qatar. Qatar’s refusal this week to meet what it considers to be unreasonable demands means that it can expect a potential escalation in the economic sanctions already meted out.

Inevitably there are repercussions for commercial parties operating throughout the region. With stadia, roads and a metro network to build in the run-up to the 2022 World Cup and Qatar’s 2030 Vision, these are particularly acute for the construction industry.

This post considers three potential avenues that contractors and sub-contractors might pursue in circumstances where the performance of their obligations becomes either impossible or increasingly and prohibitively difficult should this period of political confrontation be prolonged. Continue reading →

REUTERS | Jean-Paul Pelissier
July 5, 2017

When the boat comes in: when making a windfall profit does not count as mitigation

The Supreme Court handed down its judgment in Globalia Business Travel SAU (formerly Travelplan SAU) v Fulton Shipping Inc of Panama on 28 June 2017. It brings to an end an extraordinary saga.

The parties had entered a charter party of a vessel owned by Fulton. There was a dispute and the charterer redelivered the vessel to Fulton in October 2007. Fulton treated the charterer as in anticipatory breach of contract and accepted the breach as terminating the charter party. There was no available chartering market on redelivery. Shortly before redelivery, Fulton sold the vessel for US $23.7 million. There was a significant difference between the value of the vessel when it was sold and its value when it would have been redelivered if the charterer had not breached the contract. This was because the market crashed between the time of actual redelivery and the date when the vessel should have been redelivered had the charter party run its course.

The issue was deceptively simple: should credit be given for the additional profit Fulton obtained by selling the vessel? Continue reading →

REUTERS | Amr Abdallah Dalsh
July 4, 2017

The ostrich approach to dealing with adjudication

When I was reading Stuart-Smith J’s judgment in Lobo v Corich, I started thinking about the different types of party that come to adjudication, or get embroiled in the process as a responding party. As you might imagine, not everybody takes part enthusiastically. In fact, some could be said to be extremely reluctant.

As Lobo v Corich demonstrates, attempting to bury your head in the sand is not a sound tactic. (Apparently it wouldn’t be very good for an ostrich either, as it wouldn’t be able to breathe!) Continue reading →