Many a construction dispute turns on defects. A significant subset of those turn on whether the existence of defects prevents practical completion from taking place. It’s not surprising that these situations are contentious: contractors are keen that practical completion is certified so as to avoid or limit their liability for liquidated damages, trigger the return of retention monies and, often, to bring about an assessment of sums they consider due under the final account. Employers may be understandably reluctant to take possession of a property which they consider defective and by resisting practical completion an employer can put pressure on a contractor by withholding sums that would otherwise become due.

Practical completion is therefore an important concept in construction contracts, although one that is often not precisely defined, which can cause uncertainty and hinder the operation of the contract. Continue reading

REUTERS | Ricardo Moraes

Football’s transfer window is open and the papers are full of stories about who may be leaving, who may be arriving and who hasn’t got any money to spend. Speculation is rife, but does anyone wonder what really happens behind the scenes when a footballer’s contract of employment is terminated and he goes off to play for another club?

Apparently, there are rules about this. In England, the FA is the governing body and it has rules that all clubs and players are bound by. These rules extend to termination, either “with just cause” or ” with a sporting cause” and also encompass the “consequences of terminating a contract without just cause”.  Essentially, it means compensation is payable by the party in breach (usually the player). If the player has to pay compensation, he is jointly and severally liable with his new club to pay the old club. In practice, I guess the player’s transfer fee is the “compensation”.

This is all set out in some detail in the judgment in Fleetwood Wanderers Ltd v AFC Fylde Ltd, where the Commercial Court had to decide whether an arbitrator had breached his section 33 duty to act fairly and impartially. Continue reading

REUTERS | Stefan Wermuth

Whether liquidated damages (LDs) can be claimed after termination is a question which comes up regularly. It is very relevant in the current climate where contracts are often terminated following contractor insolvency. If I were devising a construction law exam paper, this classic question would undoubtedly appear.

An unlucky student sitting my imaginary exam paper might start with the recent case of GPP Big Field LLP v Solar EPC Solutions. This case concerned five EPC contracts relating to solar power generation plants in the UK. The contractor became insolvent and GPP (the employer) sued the parent company of the contractor as guarantor/indemnifier of the contractor’s obligations under four of the EPC contracts. Continue reading

REUTERS | Heinz-Peter Bader

My 2019 wish list

Firstly, and most importantly, a Happy New Year to you all!

As regular readers to this blog will know, in our first piece each year Matt or I like to set out our construction law wish list for the coming 12 months. I don’t know whether it’s been caused by over indulging in turkey and Christmas pudding, but I’ve been struggling to come up with my list, so I decided to refer back to the last list I wrote in 2017 for some inspiration. Continue reading

REUTERS | David Mdzinarishvili

As we all get into the festive spirit you may well find yourself chatting to family or friends about their latest project. Some may ask for your opinion or advice. But don’t get carried away; remember the cautionary tale of Burgess v Lejonvarn before offering any free advice. Continue reading

REUTERS | Stephen Hird

“You can’t always get what you want, but if you try sometimes you might find you get what you need.” Or so the song goes. It’s good advice in the run-up to Christmas, lest a lovingly gift-wrapped jumper fails to meet with your immediate approval.

So, as the festive season looms, what goodies are stacked in the aisles of the Construction Land Pop-up Store? And which of them is worth snapping up for our significant others (I’m thinking here of clients and contractors)? The choice is legion, so I shall pick out only a few of my favourite things. Continue reading

REUTERS | Kim Hong-Ji

Earlier this year, I wrote about how I thought it was time for some form of mentoring or shadowing scheme to be introduced to enable budding adjudicators to gain exposure to the practical and real-life issues that adjudicators experience and to be able to discuss those issues as part of their development.

I referred to the difficulties for individuals in gaining the experience they need, and drew an analogy with the chicken and egg:

“… gaining admission onto the adjudicator panels or getting your first appointment is even more difficult than it was 20 years ago. This is reflected in the fact that some panels require applicants to have sat as an adjudicator and produced, say, three decisions before they will be considered for inclusion. “

If you are not on a panel, how to do you get experience? If you are inexperienced, how do you get nominated? In those circumstances, what chance do you have of producing a decision (let alone three) that would allow you to be considered for inclusion? Continue reading