We are no longer publishing new items on this blog. Instead, we now publish articles covering similar issues on Practical Law (see Practical Law Construction homepage).
You can also listen to The Construction Briefing podcast, which is an alternative way of learning about key developments in construction law from the Practical Law Construction editorial team.
All good things come to an end, and sadly this will be our last blog for Practical Law Construction. However, fear not as we will continue to write some articles for them in the future, and we hope to relaunch the blog on a separate platform later this year. We’re afraid you can’t get rid of us that easily!
We’ve never done a joint blog before, and so welcome to our first and last joint blog for Practical Law Construction. Rather than both try and write about a recent case, we thought we’d each do a whistle stop tour of some of our highlights of the past 15 years.
Where shall we start?? Continue reading
In Pegasus v Ernst & Young the advice from Mr Justice Mann was that:
“Whatever the metaphysician may say, the law says that the loss flowing can and should still be treated as a loss of the assignor which the assignee can recover. Black holes are to be (as all black holes should be) avoided where possible.”
So what are these black holes we need to avoid? In our universe, this arises because only a party to the contract can make a claim and the party to whom a contract is assigned cannot recover more than the original party. This was considered in detail by the House of Lords in Linden Gardens Trust v Lenesta Sludge Disposals and two exceptions were identified to the general rule, in order to prevent a party avoiding liability on the basis of a no loss argument. Continue reading
We have published episode 20 of The Construction Briefing podcast featuring the Practical Law Construction editorial team.
This month Michelle Rousell and Yassir Mahmood start their discussion with a number of building safety developments, before moving onto items with a numerical theme:
Finally, we end in the 17th century, with a discussion about the judgment in Lendlease Construction (Europe) Ltd v AECOM Ltd and another [2022] EWHC 2855 (TCC).
The Construction Briefing is an alternative way of learning about key developments in construction law, with our editorial team discussing some of the wider issues those developments raise.
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Last year I wrote about the judgment in Nicholas James Care Homes Ltd v Liberty Homes (Kent) Ltd, where O’Farrell J continued an interim freezing injunction that had been granted a month or so earlier. As I said at the time, while I wouldn’t ordinarily be interested in an injunction application, I wrote about it because one of the contractor’s defences to enforcement of the adjudicator’s decision focused on the adjudicator’s request for on account payments for his fees.
Fast forward six months and the case has been back before the TCC judges (also called Nicholas James Care Homes Ltd v Liberty Homes (Kent) Ltd). This time it was in front of Recorder Andrew Singer KC (sitting as a High Court judge), who was asked to look at the payment point as part of the enforcement application. He held that the adjudicator had not exercised a lien before issuing his decision. Consequently, the adjudicator’s decision was enforced and there were no grounds to stay enforcement. (Separately, he declined to discharge the freezing injunction but I’m not going to discuss that aspect of the case.)
Just like last time, I’m interested in what the judge had to say about those on account payment requests. Continue reading
One of the major changes to the regulation of the design and construction of “higher-risk buildings” is the introduction of the gateway regime.
This regime comprises a series of “hard stops” that a construction project will need to pass through in order to proceed to construction, completion and then occupation. The gateways are:
Gateway 1 is already in force and government commentary suggests that gateways 2 and 3 will come into force in October 2023. Continue reading
Can a dormant company enforce an adjudicator’s decision in its favour?
It may take an unusual set of facts to produce such a situation (in both cases where it has happened, there was a dispute as to who was the correct contracting party). However, the answer is yes. So long as it falls on the right side of the well-known principles for a stay of execution in Wimbledon v Vago, a dormant company can enforce an adjudicator’s decision and resist an application for a stay of execution. Continue reading
In the early ’80’s, Soft Cell sang Say hello, wave goodbye. It probably isn’t as well known as the dance floor-filler that is Tainted love, but it is a song that came to mind when I read the Court of Appeal’s judgment in A & V Building Solutions Ltd v J & B Hopkins Ltd.
If you are wondering why, it is because the court held that J & B Hopkins (JBH) had waived goodbye to any right to challenge the validity of A & V Building Solutions’ (AVB) payment application. Continue reading
A key concept introduced by Part 4 of the Building Safety Act 2022 (BSA 2022) is the Accountable Person (AP). Required in relation to every occupied higher-risk building, the AP is the “dutyholder” who has responsibility for the fire and structural safety of the building during occupation.
Part 4 provides an overarching skeleton framework for identifying the AP and the duties they will be required to undertake. However, much of the detail of Part 4 remains to be filled out by secondary legislation, the content of which will largely depend on the government’s response to the consultation on the new safety regime for occupied higher-risk buildings (Consultation). While the Consultation itself gives a sense of how the AP regime will operate it is of course no substitute for the actual legislation. Continue reading
I can’t say that I recall Dyson LJ’s judgment in Connex South Eastern Ltd v MJ Building Services Group being handed down back in 2005 but I do know it is the case that told us that the phrase “at any time” means exactly that. It’s like Ronseal’s famous phrase, “Does exactly what it says on the tin”. With the Court of Appeal giving the words their literal and ordinary meaning, it was plain speaking at its best!
It has also meant that for as long as I can remember, we have all assumed that there is no time limit on when a party can start an adjudication. (In Connex, the court was dealing with a situation where the notice of adjudication was issued after practical completion and after repudiation of the contract.) Consequently, the only limitations (if there are any) are the ones we find in the Limitation Act 1980, which doesn’t prevent a party from starting an adjudication but may provide the responding party with a defence (if taken), which means the adjudicator’s decision will be in their favour. (The same applies in court proceedings and, if the defence is successful, the claim may be struck out.)
If this is all so well-established, you might wonder why I’m bothering to mention it. The answer is, because of HHJ Russen KC’s judgment in LJR Interiors Ltd v Cooper Construction Ltd, which he handed down last month. Continue reading