REUTERS | Heinz-Peter Bader
August 4, 2020

TCC refuses to strike out claim where smash and grab decision not paid

REUTERS | Heinz-Peter Bader
August 4, 2020

TCC refuses to strike out claim where smash and grab decision not paid

Summer felt like it had come early in May, but much of June and July served to remind us that we don’t live in the Mediterranean. Although summer has now most certainly arrived, the judges in the TCC are still hard at it. A recent judgment that caught my eye was O’Farrell J’s in Kew Holdings Ltd v Donald Insall Associates Ltd. In it, she ordered a stay of proceedings pending payment of an adjudicator’s decision. She also ordered the claimant to provide £600,000 security for costs, but rejected the defendant’s strike out application.

I’ve seen a few articles on the judgment, many focusing on the stay pending payment. However, given that the parties agreed to the stay, I think the more interesting issue is the strike out application and that is what I’m looking at today. Continue reading →

REUTERS | Bob Strong
July 29, 2020

Wind of change – is NEC the future for wind projects in APeC?

COVID-19 is causing uncertainty for business and investment strategies worldwide, the energy sector included. Despite this, investors are increasingly looking to renewables as a way  to meet growing energy demand while decarbonising energy supply. While countries across Asia-Pacific have shown strong appetite for wind power, the risk of natural disasters, inadequate government support and the high costs of new technologies (both financially and in human resource requirements) mean they won’t all reach their potential.

There are clear risks to undertaking wind projects, particularly as the average size of each project increases in scale. For offshore wind projects in particular, projects are pushing boundaries by going further from shore, into deeper waters and contending with more severe marine conditions. Turbines are growing ever larger, such as Siemens-Gamesa’s 14MW giant, which will be deployed on Taiwan’s Hai Long project in 2024, and require installation vessels that are in short supply but needed in time limited construction windows. Yet the ambitious Asia-Pacific excluding China (APeC) market targets a combined 54GW in offshore wind projects by 2030, according to Asia Wind Energy Association forecasts in May 2020. It is clear then that in the wind sector, opportunities and risks are increasing hand-in-hand.

Continue reading →

REUTERS | Ronen Zvulun
July 21, 2020

Updated adjudication guidance from CIArb and the Adjudication Society

A couple of weeks ago I was part of the panel at the launch event for the updated adjudication guidance notes published by the Chartered Institute of Arbitrators (CIArb) and the Adjudication Society. The other panellists were Ciaran Fahy, Susan Francombe, Kim Franklin QC and Jeremy Glover. The event was moderated by Lewis Johnston.

In case you are unfamiliar with either the notes or the event, what follows are a few thoughts about both. Continue reading →

REUTERS | Thomas Peter
July 16, 2020

Not to be sniffed at… implied terms in the context of termination

Waste projects are sometimes perceived as the less glamorous side of our construction and infrastructure practice. That does them a disservice: they involve innovative technologies and the development of sustainable infrastructure solutions. The interface of those technologies with the allocation of risk for design and construction can present interesting and knotty contractual issues. For example, the failure to meet the contractual performance requirements is sometimes blamed on the plant being fed the “wrong waste”, leading to disputes over the allocation of design risk, interpretation of performance requirements, delay and termination.

Essex County Council v UBB Waste (Essex) Ltd (No.2) concerns such a project.  The council and UBB entered into a 25-year PFI contract for the construction and operation of a mechanical biological waste treatment plant to reduce the volume of household waste sent to landfill and to generate energy from the production of “solid recovered fuel”.  Continue reading →

REUTERS | Darren Staples
July 14, 2020

Cut! A guide to severing adjudicators’ decisions

Dickie v McLeish has come before the Scottish courts again on the issue of severing an adjudicator’s decision. The Inner House’s judgment is a helpful one stop shop for those considering the question of severance in respect of enforcing an adjudicator’s decision in both Scotland and England and Wales.  Continue reading →

REUTERS | Srdjan Zivulovic
July 8, 2020

What next for the CLC’s site operating procedures?

Although a host of non-essential hospitality, leisure and retail premises were temporarily shuttered during the COVID-19 outbreak, construction sites across England, Wales and Northern Ireland were permitted to continue operations.

Yet initial sector-specific commentary from the government was bare-boned and ambiguous. Unsurprisingly, some contractors struggled with how to interpret and implement official guidance to protect workers practically.

In challenging circumstances, the industry often shows itself at its best, its members pooling knowledge and refining ideas. The Construction Leadership Council (CLC) launched its Site Operating Procedures (SOP) in March, providing a set of measures to adhere to rules on distancing and hygiene from Public Health England (PHE) to keep sites in England running. Continue reading →

REUTERS | Toby Melville
July 7, 2020

Broad meaning given to “dispute arising under the contract” in adjudication

Much has been written already about the Supreme Court’s judgment in Bresco Electrical Services v Michael J Lonsdale but, before you stop reading this blog because you’ve already read umpteen updates about the case, I want to assure you that I’m not going to talk about the insolvency issue. I’m not even going to summarise the facts of the case, as they aren’t relevant to the part of Lord Briggs’ judgment I want to focus on. If you want to know more about the facts and insolvency issues, I can do no better than refer to you what Jennifer Guthrie or Michael Levenstein had to say.

If you want to know what I’m going to discuss, there is a clue in the title but you’ll have to read on… Continue reading →

REUTERS | Carlos Jasso
July 1, 2020

Hands off! Ownership of goods and materials on construction projects

The future is very uncertain at the moment. There is significant financial uncertainty in the construction industry. With financial uncertainty comes insolvencies, and with that risk comes issues about ownership of goods and materials on site.

As a team we have been asked a number of questions about retention of title recently, and answering these questions can be like trying to catch sand. Continue reading →

REUTERS | Vincent Kessler
July 1, 2020

Back to square one? Statutory interpretation versus commercial futility after Bresco v Lonsdale

Although handed down only a few days ago, practically everyone in the construction law world is already aware of the Supreme Court’s decision in Bresco Electrical Services Ltd (In Liquidation) v Michael J Lonsdale (Electrical) Ltd and the fact that it unanimously upheld the right of companies in liquidation to retain an unfettered right to commence adjudication proceedings. The court’s ruling effectively restores the law to the position it was prior to Fraser J’s decision at first instance almost two years ago.

This piece is not so much about recounting the facts or summarising the judgment, but rather taking a closer look at the court’s reasoning in coming to its decision and specifically what its practical consequences (some of them unintended) are likely to be for practitioners. In doing so, I will be considering the court’s analysis of the statutory right to adjudicate “at any time”, and what I consider the more problematic question of futility – that is, regardless of an insolvent company’s strict legal right to adjudicate, does it make any practical sense to permit it? Continue reading →