Monthly Archives: January 2011

REUTERS | Ilya Naymushin
January 31, 2011

January 2011 digest: concurrent liability in contract and tort, and economic loss

Robert Louis Stevenson, A Child’s Garden of Verses:

“In winter I get up at night and dress by candle-light. In summer, quite the other way – I have to go to bed by day.”

January nights are some of the longest of the year, its days some of the coldest. It’s a time of year when people look forward to the distant summer and warmer months. We’ve been doing the same, identifying the events to look out for in 2011. Of all of these events, the changes to the Construction Act 1996 may have the greatest impact on construction practitioners. The Bribery Act Act 2010 is also due to come into force this year. Corruption and bribery have already been in the news; it is unlikely to stop there.

Continue reading →

REUTERS | Pillar Lee
January 31, 2011

The end of a builder’s concurrent liability in contract and tort?

Can it really be true? Can there really be settled law in the vexed area of the tortious liability of building contractors?

Ever since the House of Lords’ decision in Murphy v Brentwood in 1991 there has been much debate, case law and ink spilt on this question. Cases in the TCC go one way and then the other, and case law in other areas is regularly brought into play by analogy to justify one or other of the opposing views. Continue reading →

REUTERS | Aly Song
January 25, 2011

Financing adjudication enforcement proceedings

How a party finances litigation is usually a matter between it and its solicitor. It may simply agree to pay the costs incurred by its solicitor and the legal team, in the usual way, or it may enter into some form of conditional fee agreement (CFA) that affects the level of those fees, depending on the outcome of the litigation. Nowadays, a party may also consider after the event insurance (ATE insurance). Continue reading →

REUTERS | Mike Blake
January 24, 2011

To infinity and beyond? Limiting liability after Centrica v Accenture

The parties to civil engineering and construction contracts, particularly for energy projects, manufacturing facilities, process plants, waste processing and similar projects, increasingly try to fix a “final frontier” for their exposure to claims, using a limit of liability clause.

Last summer’s GB Gas Holdings (referred to as Centrica) v Accenture reminds us about how limits of liability will be interpreted and, as an employer or contractor, it is important you go some way to understand the effect of your limitation of liability provision. Continue reading →

REUTERS | Ricardo Moraes
January 19, 2011

How does Jackson LJ’s option two for disclosure work in practice?

The overwhelming practice in international arbitration is for disclosure to be governed by the IBA Rules on the Taking of Evidence in International Arbitration (the IBA Rules). The IBA Rules’ disclosure requirements are equivalent to option two of Jackson LJ’s proposed menu of options for disclosure (as set out in his preliminary report). In my view, experience of how the IBA Rules work in practice provides some useful lessons about Jackson LJ’s option two.

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REUTERS | Paulo Whitaker
January 19, 2011

Lifting the automatic suspension in public procurement after Indigo and Exel

In December 2010, I was involved in resisting an application to lift the automatic suspension imposed by regulation 47G(1) of the Public Contracts (Amendment) Regulations 2009 (SI 2009/2992) (2009 Regulations) so as to enable a hospital trust to award a public contract to the successful tenderer.

This post sets out my experience of the court’s approach in considering whether to grant the interim order that the hospital trust sought. Continue reading →

REUTERS | Eduardo Munoz
January 18, 2011

Slip rule to the adjudicator’s rescue, again

I have referred to the slip rule in adjudication on a number of occasions, most recently following Ramsey J’s judgment in O’Donnell Developments v Build Ability. It is a handy implied term for those occasions when adjudicators make a mistake.

Akenhead J’s judgment in Redwing v Wishart provides yet another example of an adjudicator getting his maths wrong and then fixing the problem using the slip rule. (I looked at the reasons point last week.)

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REUTERS | Beawiharta
January 18, 2011

What does the future hold for contract interpretation?

I’m reading a futurology book at the moment. The author says that the way to predict the future is to understand the causes of events by reference to underlying influences.

He says that politicians (and other powerful people) do not control the world as much as we think. Many of the decisions that they make are the inevitable result of these underlying influences.

One example is geography. Maritime nations have always tended to trade internationally and to prosper because of that trade. Demographics is another underlying influence. Population reduction (and an aging population) in developed countries will influence events and social trends in those countries, resulting in politicians and others inevitably and predictably making certain decisions. Continue reading →

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