REUTERS | Faisal Al Nasser
September 26, 2017

Don’t give a judge an excuse not to enforce you

REUTERS | Faisal Al Nasser
September 26, 2017

Don’t give a judge an excuse not to enforce you

As an adjudicator, you face a number of hurdles when you go about your daily business of being an adjudicator.

It starts before you even begin work, when you are first approached to be appointed to adjudicate on a matter, and continues throughout the dispute, right up to the crescendo of your involvement, when you hand down your decision.

As long as I have been involved in the process, parties have been coming up with ways of putting more and more hurdles in our way. The one thing that I always tell myself (and anyone else willing to listen to me, like my students) is that it is really important not to give a judge an excuse not to enforce your decision. One could extend that mantra, and say that it is really important that you don’t trip yourself up at any point along the way first. Continue reading →

REUTERS | Navesh Chitrakar
September 19, 2017

Error of law leads to remission of issue to arbitrator, not the Award set aside

I’ve been sent a judgment from earlier this year: Maurice J Bushell & Co v Graham Irving Born. It is all about whether, following an arbitration, the court should allow an appeal on a point of law under section 69 of the Arbitration Act 1996 and, if so, should the matter be remitted back to the arbitrator (the tribunal). As someone who sometimes sits as an arbitrator (as well as in other dispute resolver capacities), I found it an interesting judgment.

Those keen-eyed among you will know that it isn’t the first time I’ve blogged about arbitration in the past couple of years, including on the increasing use of arbitration domestically. That’s certainly been born out from my experience this year, having already completed three arbitration awards (which is three more than I completed in the whole of 2016!). Continue reading →

REUTERS | Kim Hong
September 12, 2017

Using Part 8 to “appeal” adjudicator’s decision

It isn’t every day that we get to refer to Will Smith’s “wicky wicky wild wild wild west“, on this blog, but Jonathan managed it last year when he discussed Fraser J’s judgment in Beumer Group UK Ltd v Vinci Construction UK Ltd.

The parties have been before the court again, this time before O’Farrell J, on a Part 8 declaratory relief application. There is no mention of the wild west this time around. It was all about whether the adjudicator had correctly interpreted the parties’ sub-contract. Not a subject for cowboys! Continue reading →

REUTERS | Shamil Zhumatov
September 8, 2017

Signposts to claims-free project delivery (part 2)

Last time, we explained how collaborative working is helping Network Rail to reduce the number of disputes it faces. We touched upon the reasons why Network Rail established a Dispute Avoidance Panel (DAP) pilot and looked at some aspects of the process.

This time, we explain some of the challenges we have encountered, the broad themes that have emerged from the process and the feedback we have received from the DAP pilot. Continue reading →

REUTERS | Jumana ElHeloueh
September 5, 2017

Direct procurement: the story so far

Historically, companies in regulated sectors like electricity, water and rail have carried out the design, build, financing and operation of their own projects. Recently, there has been much talk of a concerted shift away from this practice, as regulators look to replicate the efficiencies of competitive markets. Why? Because various sector regulators see the introduction of competition for major new developments as a means of encouraging regulated utilities to economise and innovate, with the goal of delivering better and cheaper service for consumers.

Various models for competition have been mooted, but the latest answer is direct procurement. This blog, the first in a series of posts on direct procurement, explains what direct procurement is and where it is headed.

Continue reading →

REUTERS | Heinz-Peter Bader
September 5, 2017

Expert behaviour and joint statements in the spotlight

A few weeks ago, I looked at what Coulson J had to say about experts in Bank of Ireland v Watts. This time, I’m turning my attention to Fraser J’s judgment in Imperial Chemical Industries Ltd (ICI) v Merit Merrell Technology Ltd (MMT).

You may recall that Matt has already looked at some of the payment issues that came out of this judgment and I’m looking at the expert evidence, which was called by the parties to deal with the alleged defects in MMT’s works.
Continue reading →

REUTERS | Corbis
September 4, 2017

Contract (Third Party Rights) (Scotland) Bill: the end of collateral warranties or business as usual?

Unlike in the rest of the UK, third party rights or jus quaesitum tertio exist at common law in Scotland. A third party identified (expressly or otherwise) in a contract may be granted enforceable and irrevocable rights by the contracting parties. This seventeenth century regime is widely viewed as uncertain and inflexible. As with the rest of the UK, the use of collateral warranties to create rights for third parties is commonplace in the construction industry.

However, reform of jus quaesitum tertio is now on the agenda, as the Scottish Government has introduced the draft Contract (Third Party Rights) (Scotland) Bill, which will replace the old common law system.  Continue reading →

REUTERS | Mike Blake
August 30, 2017

August 2017 digest: fitness for purpose and adjudication costs

Evelyn Waugh, Brideshead Revisited:

“If it could only be like this always – always summer, always alone, the fruit always ripe and Aloysius in a good temper…”

August, often a quiet time, filled with lazy days (because of the school holidays) and a little bit of cricket. This year, August saw two notable judgments handed down out of term:

Both will have far-reaching implications for the construction industry. Continue reading →

REUTERS |
August 30, 2017

Supreme Court rules on diffuse design and build obligations

Construction, engineering and energy disputes often give rise to issues as to the design standard to which a design and build contractor ought to be held. In such cases, the issues often relate to how the contractor’s obligations (which may be diffuse) interrelate with one another. Disputes are particularly likely to arise where the parties’ contract:

  • Requires the contractor to design and build in accordance with a prescribed standard or specification.
  • Separately, requires the contractor to provide the employer with a product that will be fit for an intended purpose or will have a particular design or service life.

In such a case, if the contractor designs and builds in accordance with the prescribed standard or specification, but that standard or specification itself proves to have been defective so the product is not fit for purpose or does not have the required design/service life, should the contractor be held liable for the consequences?

In MT Højgaard A/S v E.ON, the Supreme Court clarified how one ought to approach the issues of interpretation that arise in cases concerned with diffuse design obligations. Continue reading →