“Never cast a clout until May is out.”
This is a centuries old phrase that is generally taken to mean one shouldn’t discard winter clothing until the end of May. This year has been a bit different, with another record warm and dry month. To many of us, winter coats are a thing of our dim and distant past. Continue reading
The adjudicator has no free-standing power to award interest and paragraph 20(c) of the Scheme for Construction Contracts 1998 (if it applies to the adjudication) does not give him one (Carillion v Devonport).
The adjudicator only has power to award interest if that issue has been referred to him or the parties have agreed it falls within the adjudicator’s scope. Alternatively, it may be a matter that the adjudicator considers is “necessarily connected with the dispute”. (This may all change when the revised Scheme is published but, for now, we don’t know when that will be or whether an adjudicator will be given wider powers to award interest, as he considers appropriate.) Continue reading
How do you verify the identity of an overseas company, whether it has power to enter into the contract and who is authorised to act on its behalf? Does it matter if you don’t know the difference between a Gesellschaft mit beschränkter Haftung and an Aktiengesellschaft?
Individuals travelling overseas with any frequency are used to having to prove their identity by the presentation of a passport, but there is no equivalent proof of identity available to companies. Continue reading
I was reading an old case recently where one side was represented in court by a very eminent QC, while the other side was using junior counsel. Maybe it was just me, but I couldn’t help noticing that the judge, almost without exception, accepted the senior counsel’s points while dismissing the junior counsel’s points. Now, I’ve no doubt that the judge wasn’t biased and the senior counsel’s points were simply more persuasive, but I wonder whether the judge unwittingly gave more weight to them?
Desperate times may call for desperate measures, but think carefully before you cross the line.
There is a temptation to do what is necessary to secure the deal, but make sure what you say is accurate. Continue reading
R.E.M. felt fine, even though it was the end of the world as they knew it.
Leaving aside the raft of current problems facing the planet, the economy and our industry…
…and restricting our event horizon to the bubble that we construction lawyers inhabit, do we feel fine when we hear that the sanctity, purity and unassailable simplicity of the on demand bond has been cracked? Continue reading
There is an interesting article by Cliff Wakefield in the latest Construction Law Journal, “Are the users of adjudication getting a raw deal?”.
Cliff discusses whether there is a decline in adjudication referrals at the present time, notwithstanding the recession (when you would expect to see more not less referrals), because the process has turned into such an expensive one for the parties, especially in small and medium-sized disputes.
He puts forward a number of arguments for why this may be, suggesting that it has mainly gone wrong for users of adjudication because so many people (ANBs, lawyers and adjudicators) are milking the system and are no longer putting the disputing parties first. I will leave others to read Cliff’s article and form their own views on his arguments and conclusions. Continue reading
Picture the dilemma. A company was invited to tender for work and it provided a quotation (which included some standard terms and conditions) and then exchanged a number of letters with the employer’s representative. It didn’t sign anything and, although it started work, it didn’t get paid. The employer is now saying that because there isn’t a contract, it doesn’t have to pay. The company isn’t sure if it has a contract with the employer, but it wants to be paid. What should it do? Continue reading
Although early neutral evaluation (ENE) in the TCC got off to a slow start, interest in it seems to be increasing. Recently, we have found that more clients are considering ENE as a dispute resolution method and as an alternative, or as an add on, to more traditional methods such as mediation.
I have noticed an increase in the number of adjudications that are referred to me where I have not been nominated via an adjudicator nominating body (ANB) like the RICS, but rather, at the outset I was named in the parties’ contract as the adjudicator or agreed by the parties following a dispute arising.
I wonder whether, if the adjudicator had been named in the parties’ contract or the parties had agreed an adjudicator in Lanes Group v Galliford Try, things may have turned out differently for them. Continue reading
