Monthly Archives: February 2011

REUTERS | Petar Kujundzic

Henry Wadsworth Longfellow, Afternoon in February:

“The day is ending, the night is descending; the marsh is frozen, the river dead.

Through clouds like ashes, the red sun flashes, on village windows that glimmer red.”

February is sometimes described as a bridge between January and March, a month that connects winter to spring. Some days are wet, some dry, most are cold, while others tantalise us with weak sunshine and a sign of spring to come. Continue reading

REUTERS | Arnd Wiegmann

In Roberts v Frohlich, Norris J considered whether the directors of a property development company, Onslow Ditchling Limited (ODL), had acted improperly prior to ODL’s liquidation.

ODL was incorporated as a special purpose vehicle to buy and develop a single site at Ditchling that had planning permission for 30 industrial units. The development was to be financed entirely with borrowed money and, ultimately, all the units were to be sold freehold. Both directors (Mr Frohlich and Mr Spanner) were experienced professionals and both had extensive experience in property development companies. Continue reading

REUTERS | Ahmad Masood

Ann Minogue’s article Can we be of any assistance? (Building, 21 January 2011) asked whether there is a role for lawyers in the adjudication process. She wondered whether it is time to “review the industry’s original ‘no lawyer’ position, which [she] previously supported”.

Ann’s article suggests that in the run up to the Construction Act 1996 coming into force and during drafting of the Scheme for Construction Contracts 1998, there was “much discussion” about prohibiting parties from being legally represented in the adjudication process. I don’t really remember that. I wasn’t really involved in dispute resolution back then, I was still quantity-surveying full time. Continue reading

REUTERS | Juan Carlos Ulate

On 15 February 2011, Cotswold Geotechnical (Holdings) Ltd became the first company in the UK to be convicted of corporate manslaughter under the Corporate Manslaughter and Corporate Homicide Act 2007 (2007 Act).

For practitioners in health and safety, the first corporate manslaughter prosecution was eagerly awaited. It was hoped that with it would come clarification of some of the controversial elements of this new offence. However, while the case has attracted much publicity, the conviction and sentence have left many still unclear how the new legislation will actually impact on individuals and companies facing prosecution under the 2007 Act. Continue reading

REUTERS | Lisi Niesner

The Court of Appeal’s recent decision in Robinson v Jones considered the extent of a contractor’s duty of care in tort not to cause economic loss. Specifically, it considered the extent, if any, to which the making of a contract in itself gives rise to an assumption of responsibility (in the Hedley Byrne v Heller sense) that justifies imposing a tortious liability for economic loss.

In short, the court decided that a “simple” building contract does not in itself give rise to the requisite assumption of liability, but that the same does not apply to professional appointments. However, the court did not express a view as to which side of the line design and build contracts fall, and I thought this was one of the most interesting aspects of this case. Continue reading

REUTERS | Paulo Whitaker

Or should that be “Damp squib Part 2”? (For Part 1, see Matt’s April 2010 post.)

When BIS launched its consultation on the Scheme for Construction Contracts 1998, we were all hopeful that, once our answers to the consultation had been submitted, it would pave the way for the amendments to the Scheme and the Construction Act 1996 to come into force before the end of 2010. Unfortunately, that was not to be and the results of BIS’s consultation have still not been published. Continue reading

REUTERS | Kim Hong-Ji

In my December post I asked why an insolvent party would commence an adjudication when, even if it was successful and tried to enforce the adjudicator’s decision, the court would invariably grant a stay of execution. So, why bother one may ask?

The courts recognise that if money is paid over to an insolvent party, the paying party is unlikely to recover that money if it successfully reverses the position in future proceedings. This is why the court may grant summary judgment in favour of the insolvent party but makes it subject to a stay of execution.

Recently, I came across the situation where an insolvent party tried to argue that an adjudicator’s decision was “final and binding” and that monies should be paid over to it, the successful party. Continue reading

REUTERS | Ronen Zvulun

Many years ago (longer than I care to admit) I went on my first foreign business trip. I had done a small piece of work for a UK subsidiary of a European company. I didn’t know them very well, but was pleasantly surprised when their holding company asked me to go to a meeting in their head office, to discuss a new matter. Their head office was not exactly in the Black Forest, but was pretty close.

Continue reading

REUTERS | Kim Hong-Ji

Everyone knows that without a construction contract you can’t have a statutory adjudication. Everyone also knows that, absent a contractual adjudication agreement, if there isn’t a construction contract, the adjudicator doesn’t have jurisdiction and so, if he goes ahead and reaches a decision that one party refuses to honour, the court will not enforce it. Continue reading

REUTERS | Yves Herman

What happens if your design and build contractor goes bust, but hasn’t paid its professional consultants? In particular, what happens if those consultants then contact you to claim that you can’t use their designs and documents, because you don’t have a valid copyright licence to do so?

This situation may be particularly painful if, before the main contractor became insolvent, you had paid it in full (and it should have paid the consultants, as its sub-contractors). Continue reading