REUTERS | Yves Herman

What to expect from NEC4

REUTERS | Yves Herman

Goodlife Foods Ltd v Hall Fire Protection Ltd is a decision of HHJ Stephen Davies (sitting as a High Court judge) on a preliminary issue relating to the proper construction and enforceability of an exclusion clause under the Unfair Contract Terms Act 1977 (UCTA). It was also a decision on an application for permission to amend turning on the meaning of “electrical equipment” under the Electrical Equipment (Safety) Regulations 1994 (the 1994 Regulations) (but I’m not going to look at this point). Continue reading

REUTERS | Corbis

Experts again

Earlier this year it was suggested to me that I should take a look at Irwin LJ’s judgment in EXP v Barker, in part because the topic of experts is a familiar one on this blog.

Time and time again, experts do something (or don’t do something), that causes the judge (whether at trial or on appeal) to question the reliability of their evidence. Previous posts include one on Stuart-Smith J’s judgment in the Ocensa Pipeline Group Litigation, but I’ve also looked at Coulson J’s views of the quantum experts in Van Oord UK Ltd and another v Allseas UK Ltd and, prior to that, I considered Akenhead J’s judgment in Weatherford Global Products Ltd v Hydropath Holdings Ltd and othersHowever, it isn’t always about performance, as my piece on the judgment in British Airways plc v Spencer and others demonstrates. This post isn’t either. It’s all about who the expert knew, and how well. Continue reading

REUTERS | Yuriko Nakao

This is the final instalment in my series of 12 posts on variations that has run (approximately) every other month for the last two years. I have tried to cover all the key issues that arise, such as whether a variation instruction must be in writing (and how to claim if it isn’t), whether an employer can be under a positive duty to vary the scope and whether a contractor can refuse to carry out an instructed change.

As many of these posts will hopefully have illustrated, while variations are the bread and butter of contractual disputes on a project, it is a subject that raises some fascinating issues that do not always get the attention they deserve.

Possibly the most overlooked issue in this area is the question of how construction contracts deal with delay caused by variations. Continue reading

REUTERS | Ali Hashisho

A couple of years ago, in a post called Guilty as charged? Or how to get rights wrong, I queried the common practice of an employer assigning its rights under the project documents (building contract and appointments) to its funder. Surely the person who needs to enforce these rights is the employer? The interests of a funder (such as a bank) can be adequately protected by way of collateral warranties or third party rights, coupled with a charge over the employer’s rights under the project documents. There is simply no need for an assignment.

I compared this to buying a new car with a loan, only for the bank manager to take away the keys and steering wheel as security, and still insist that the borrower give him a lift back to his branch. Wouldn’t it be better to leave the steering wheel, if you want someone else to drive? The confused rigmarole of such assignments gives no-one what they really need. Continue reading

REUTERS | Dylan Martinez

I’m not sure that parties who represent themselves and issues about an oral sub-contract (or three) are necessarily good bedfellows, as Coulson J recently found out when he had to deal with a challenge to the adjudicator’s decision in RCS Contractors Ltd v Conway.

It’s a short judgment (only 22 paragraphs), but it is a case that demonstrates some of the difficulties that can arise in adjudication. Continue reading

REUTERS | Lucy Nicholson

In Aecom Design Build Ltd v Staptina Engineering Services Ltd, Fraser J held that an adjudicator had not acted outside of her jurisdiction or in breach of the rules of natural justice by deciding how deductions for alleged defects should be assessed under an NEC Engineering and Construction Short Subcontract.

The decision provides a powerful reminder that adjudication is merely a temporary resolution of any particular dispute and that, only in the plainest of cases, will the court uphold an enforcement challenge on the grounds of excess of jurisdiction or a breach of the rules of natural justice. Continue reading

REUTERS | Vasily Fedosenko

Trying to find a way around an exclusive remedies clause is a familiar challenge. The contract provides the parties with the right to make certain claims against each other pursuant to a specified process. There is a clause that provides that the right to make claims under the contract constitutes the parties’ sole and exclusive remedies.

If, for whatever reason, one of the parties cannot utilise the contract’s code for claims, the question arises: is there any way around what seems to be an exclusive remedies regime?

The Court of Appeal’s decision in Scottish Power UK plc v BP Exploration Operating Company Ltd provides a good opportunity to re-visit the applicable principles in an area in which there is a surprising disparity between, on the one hand, the significance of the topic and the frequency with which it arises and, on the other hand, the relative paucity of authority dealing with it. Continue reading

REUTERS | Mike Hutchings

It’s been some time since we’ve blogged about a case involving allegations of breaches of the rules of natural justice against an adjudicator. However, fear not because the Outer House of the Court of Session’s judgment in Bell Building Projects Ltd v Arnold Clark Automobiles Ltd contains some juicy natural justice arguments. It’s a story of weekend working, last minute evidence and threats of resignation by the adjudicator.

Have I whetted your appetite? Continue reading

REUTERS | Kim Kyung-Hoon

Things are not always what they seem. While in one sense, the UK is busy disconnecting itself from Europe with the advent of Brexit, in another sense it is quite literally becoming more connected than ever through the growth of the electricity interconnector market. This post takes a look at this fast rising market and considers some of the construction risks such projects may face.  Continue reading