REUTERS | Ricardo Moraes
REUTERS | Ricardo Moraes

Much has been written over the years about whether a party can recover its costs of an adjudication. I wonder if a recent O’Farrell J ex tempore judgment is the last (or just the latest) word on the matter. In football speak, is it one nil to the Construction Act 1996?

If you are not sure what I’m talking about, then you’d better read on. Continue reading

REUTERS | Amir Cohen

Disputes within the construction industry are an inevitable part of doing business. Well, that is the frequent punditry. While parties enter into contracts with the intention of successfully completing their projects without a dispute, often there can be an almost subconscious acceptance that a dispute over time and/or money will occur at some point during the works. It should not be the case that we simply accept this as inevitable and the industry must challenge such thinking and endeavour to improve the number of projects that are delivered claims-free.

Over the years, industry has been invited to take steps to address its adversarial nature, to collaborate and to avoid disputes. From evangelists such as Latham, Egan, McNulty or Wolstenholm, to the more recent collaborative working principles defined through BS 11000 and the new international standard, ISO 44001, “signposts” and techniques to assist projects in avoiding disputes do exist.

In spite of this, the construction industry is still predominantly seen as adversarial and divisive with claims becoming more complex, protracted and costly. There is clearly room for improvement and, rather than focus on remedies and contractual defences, clients should consider what contribution they can make to a more collaborative process from the outset, with the potential to avoid disputes from arising in the first place.

This post looks at one such client that has set out on a journey of collaboration and is challenging the inevitability of disputes across its portfolio. Continue reading

REUTERS | Navesh Chitrakar

I wonder how many adjudicators have checked their T&C’s since the judgment in Christopher Linnett Ltd v Harding (t/a M J Harding Contractors) came out. I know we did, just to be sure that it is clear who any appointment is with, where the money should go and what rights we have if we don’t get paid (including how interest is calculated and what we can do about our costs).  Continue reading

REUTERS | Dinuka Liyanawatte

A few weeks ago, I looked at what Coulson J had to say about experts in Bank of Ireland v Watts. I’m returning to that judgment this week to look at the project monitoring angle.

Just like experts are a recurring theme on this blog, it seems that project monitoring is too, as I have I looked at the judgment in Bank of Ireland v Faithful & Gould Ltd and I have also discussed the judgment in Lloyds Bank plc v McBains Cooper Consulting Ltd.

One point I should make. Those cases can be distinguished from this one, as they dealt with allegations of negligence concerning a project monitoring surveyor’s (PMS) progress reporting. Bank of Ireland v Watts concerns allegations of negligence over Watts’ initial appraisal report (IAR). As such, the case will undoubtedly provide clarity to surveyors and banks as to the scope of a PMS’ obligations when preparing such reports (although I suspect surveyors will be much happier with this judgment than the banks). Continue reading

REUTERS | Lisi Niesner

This is the first in a new series of bi-monthly blog posts on FIDIC contracts. With the eagerly awaited second editions of the Yellow, Red and Silver Books expected to be published by the end of 2017 or in early 2018, there is likely to be a lot to talk about. Before then, I will be posting on some general FIDIC topics, starting with this introduction, exploring the updating of the FIDIC forms with a nod towards the recently-published NEC4 suite. Continue reading

REUTERS | Shamil Zhumatov

 Imperial Chemical Industries Ltd (ICI) v Merit Merrell Technology Ltd (MMT) is Fraser J’s latest 89-page opus. It was a liability-only trial covering 16 agreed issues and sub-issues arising out of the parties’ dispute following works at ICI’s new paint processing plant in Ashington, Northumberland. Those issues included the correct contractual specification for the pipework testing, the extent of the alleged defects in the pipework, termination under an NEC3 Engineering and Construction Contract (ECC) and whether ICI or MMT was in repudiatory breach of contract, to name but a few.

It is a dispute that I have looked at previously, in Clarity is key when contract drafting and picking your ANB, when Edward-Stuart J decided the adjudicator was correctly appointed and applied the right adjudication rules, and so he enforced his decision. As there is still a quantum hearing to go, it may not be the last time that I look at it either.

This post focuses on some of the money aspects: ICI’s entitlement to recover over-payments from MMT and whether it could challenge the value of MMT’s works. Continue reading

REUTERS | Mike Blake

Patrick Stewart, on contract negotiations:

“The studio have always claimed that the ship is the star of the show, especially when they are renegotiating contracts.”

NEC4 isn’t quite in the same league as the USS Enterprise, but July was all about NEC4 at Practical Law Construction, as we worked hard to prepare new materials including notes on the new suite of contracts, the key changes in NEC4, aspects of working under an NEC4 contract and the role of the Project Manager (plus a checklist on the tasks for the Project Manager). Iain Suttie told us it’s about “evolution, not revolution”, but wondered whether it is really “a bit of a tock”. We haven’t finished yet, so there is plenty more still to come. Continue reading

REUTERS | David Mdzinarishvili

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

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