REUTERS | Jonathan Drake
REUTERS | Jonathan Drake

Some breaches of contract do not become apparent until many years have passed. This is especially true where the result is a defect. Recently, our colleague Charlotte Mears blogged on limitation periods under contract. But what happens after the limitation period under a contract has expired?

This blog explores the extent to which an answer lies in tort focusing on the tort of negligence. Continue reading

REUTERS | Jon Nazca

Your starting point, like mine, to the above question, which I will leave you to mull over the Easter break, is likely “of course!”. But why?

This question was first explored by Peter Clyde in his blog in 2012. Since then we have had the benefit of the Supreme Court’s decision in Aspect Contracts (Asbestos) Ltd v Higgins Construction plc, but does this change the analysis? Continue reading

REUTERS | Dinuka Liyanawatte

Dispute boards are not that common on projects in the UK. Insofar as any of us think about it, I’m sure we’d point to the Construction Act 1996 and say it’s because of section 108 and the right for parties to a construction contract to refer a dispute to adjudication at any time. That right affects the way the dispute resolution clause of their contract works and, if the parties have agreed to use a dispute board, they must ensure those provisions comply with the Construction Act 1996, otherwise, they will find the adjudication provisions in Part I of the Scheme for Construction Contracts 1998 will be implied into their contract instead. Then it will be bye bye dispute board. Continue reading

REUTERS | Yves Herman

On the face of it, the law of limitation seems fairly straightforward. The law in England and Wales specifies that anyone bringing a breach of contract claim has six years from the date of the breach in which to do so. This period is extended to 12 years from the breach of contract if the contract has been executed as a deed. But what happens when a provision such as the one below is added into the mix? Does this work to extend the limitation period? If not, what exactly does this provision, which I’ll refer to as the Proposed Clause, mean?

“No action or proceedings for any breach of this Deed shall be commenced against the Contractor after the expiry of 12 years following Practical Completion.”

The importance of understanding both when time starts running and when it expires cannot be overstated. We are all aware of the serious consequences of getting it wrong: no matter how strong a claim is, if the limitation period has expired, the defendant has a cast-iron defence to that claim. Continue reading

REUTERS | Vincent Kessler

This post is the third part of a series covering issues that frequently arise in international arbitration, each with a specific regional focus. This post addresses the enforcement of arbitral awards, and the potential liability of arbitrators and experts practising in the region. We also consider the impact of COVID-19 on these two topics. Continue reading

REUTERS | Amir Cohen

Any adjudicator will tell you that dealing with jurisdictional challenges can be one of the most demanding parts of the job. Such challenges must be dealt with at speed because the parties need to know whether the reference will be proceeding, and the adjudicator’s non-binding conclusion can have far reaching consequences. For example, reaching a conclusion that the contract in question was not a construction contract will result in the adjudicator resigning and the referring party will probably not refer the dispute to another adjudicator.

Thankfully, we no longer have to deal with challenges that a contract is not in writing as, in many respects, they were even more challenging, often involving quite a close analysis of what the parties had agreed, or not, as the case may be. For those of you who have not been practising in this area for long, take a look at cases such as RJT Consulting Engineers Ltd v DM Engineering (Northern Ireland) Ltd for an insight into the “delights” of parties arguing whether a contract was in writing, whether oral variations had been agreed, and so on.

Another issue that can sometimes be quite taxing is when there is, at least on the face of it, a cross-over between substance and jurisdiction. This often arises where there is a question as to whether the work was undertaken under one contract or multiple contracts, and it can leave adjudicators wondering whether they should deal with it as a jurisdictional point or as part of their decision on the substantive dispute. It’s just such a case I want to discuss today, which dates back to December 2020, Ex Novo v MPS Housing. Continue reading

REUTERS | Ali Hashisho

The final account is normally a wrap-up of the contractor’s valid claims for extra payment. It’s particularly helpful if claims were not submitted or assessed as works progressed. So, what happens if the contract doesn’t have a final account procedure but there are claims outstanding once the works are finished? Can a final account procedure be implied under section 110(3) of the Construction Act 1996?

This was one of the questions the TCC faced in the recent case of JSM Construction v Western Power. Continue reading

REUTERS | Heinz-Peter Bader

Some of us are old enough (just) to remember life before statutory adjudication was a thing, before the Construction Act 1996 was enacted and came into force. Those giddy days of the early 1990’s when the idea of responding to a notice of adjudication within a matter of days (not weeks or months or even years) was a mere twinkle in Sir Michael Latham’s eye (and horrified the rest of us)! Roll forward to 2021 and statutory adjudication is an integral part of the legal landscape that most construction practitioners have only ever known.

It is with this backdrop that I find events in Ireland of particular interest. Jonathan and I have been writing about Ireland’s Construction Contracts Act 2013 since long before it came into force in 2016. For example, see Behold the Celtic adjudication tiger (almost)Comparing adjudication enforcement in Ireland and EnglandMore thoughts on adjudication in Ireland and Adjudication in Ireland is finally a reality.

Adjudication may be a relatively new feature in the Irish dispute resolution landscape but we are finally starting to see the odd court judgment filtering through the system. I began the year discussing O’Donovan and another v Bunni and others, then added a comment to that post about Gravity Construction Ltd v Total Highway Maintenance Ltd. Now it is time to turn the spotlight on Construgomes & Carlos Gomes SA v Dragados Ireland Ltd and others.

One thing all three cases have in common is the fact that none are dealing with enforcement issues per se but, in my view, all three demonstrate the court’s intention to support the adjudication process. Continue reading

REUTERS | Vijay Mathur

The dust is slowly settling over the arguments about how contracts should be interpreted. We know that “this is not a literalist exercise focused solely on a parsing of the wording of the particular clause” and that “[t]extualism and contextualism are not conflicting paradigms in a battle for exclusive occupation of the field of contractual interpretation” (as stated by Lord Hodge in Wood v Capita Insurance Services Ltd). That means the factual background (matrix of fact) and commercial common sense still have a role to play where the plain meaning of the words is not clear (which is usually the reason why there is a dispute in the first place).

Identifying the relevant factual background presents its own challenges, but I am interested in how you identify what makes commercial sense. We are familiar with the reasonable man on the Clapham omnibus, do we now need to look for his sister, the commercially reasonable business woman on the Waterloo & City line (when not working from home)? Continue reading

REUTERS | Shamil Zhumatov

Earlier this month, Scotland beat England in the Six Nations at Twickenham for the first time in 38 years. When it last happened (in 1983), Michael Jackson’s Billie Jean was number one and Octopussy was the latest James Bond movie (which we all know is not in my top five movies of the 1980’s).

I mention this only because Scotland’s courts are also currently ahead of the English courts in terms of published adjudication enforcement judgments in 2021. For that reason, this week I’m looking at two of them: Hochtief Solutions AG and others v Maspero Elevatori S.p.A and Barhale Ltd v SP Transmission plc (I realise Hochtief is from late December, but we shouldn’t let that fact get in the way of an amusing intro!).

Both cases concerned jurisdictional issues but with very different outcomes. Continue reading