Monthly Archives: July 2011

REUTERS | Navesh Chitrakar
July 29, 2011

July 2011 digest: effective dates, new Schemes and more adjudication cases

JM Keynes, The End of Laissez-Faire:

“The important thing for Government is not to do things which individuals are doing already, and to do them a little better or a little worse; but to do those things that at present are not done at all.”

Last month we were still awaiting an effective date for the Construction Act 1996 changes. Now we know that 1 October 2011 is D-day in England and Wales, and 1 November in Scotland. We also know about the changes to the Scheme for Construction Contracts 1998 (and its Scottish equivalent), with three different versions (for England, Wales and Scotland). At least there is consistency in the Exclusion Order that each country has published, but yes, we have three of those too. Continue reading →

REUTERS |
July 27, 2011

Jivraj: Sanity Prevails!

On 27 July, the Supreme Court overturned the Court of Appeal’s decision in Nurdin Jivraj v Sadruddin Hashwani, holding that arbitrators, because of their unique, non-subordinate, relationship with the parties, are not “employees” for the purposes of Equality Act 2010 (the Act) and therefore anti-discrimination legislation does not apply to the appointment of arbitrators. This removed a serious threat to London’s position as a major seat for international arbitrations.

Continue reading →

REUTERS | Mike Blake
July 27, 2011

Insurers back on the hook for third party claim

In November 2010, I reported on the TCC’s decision in McIlroy v Quinn. That judgment had flagged up yet another problem for a claimant seeking to take advantage of the Third Parties (Rights Against Insurers) Act 1930 (1930 Act). On 18 July 2011, the Court of Appeal described the TCC judgment as “remarkably unfair” and, crucially, wrong in law.

Continue reading →

REUTERS | John Kolesidis
July 26, 2011

What is a works or services concession? Do possible regulatory changes matter?

In the UK, we tend to talk more about PFI and PPP than about concessions. In the EU, a consultation on concessions closed in September 2010, but the results have not yet been published. We can only assume that the Commission has been waiting for the outcome of its Green Paper consultation on the modernisation of EU public procurement policy (the results of which were published in June this year) before concluding its findings on concessions.

Although the topic of concessions was excluded from the consultation on the Green Paper, the outcome of the consultation will undoubtedly affect the future of concessions. This post considers what a concession is and what the future holds for concessions in the UK.

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REUTERS | Brian Snyder
July 26, 2011

Ask the team: I’m training my team on the changes to the Construction Act 1996…

…where should I start?

If you are a construction lawyer or a commercial manager who needs to understand how the changes to Part II of the Housing Grants, Construction and Regeneration Act 1996 (Construction Act 1996, also known as the HGCRA 1996) will affect construction contracts, this Ask the team gives you the basics, based on PLC Construction’s materials. In particular, we suggest a draft agenda that can be used for a training session. Continue reading →

REUTERS | Petar Kujundzic
July 26, 2011

Reasonableness of adjudicator’s fees – a victory for common sense

In adjudication there is always the potential of the losing party who is, probably, liable for some if not all of the adjudicator’s fees, trying to avoid paying those fees. If the losing party can dress that up as a challenge to the reasonableness of the fee they are being asked to pay, the more likely they will make the challenge.

Therefore, I was pleased to see the judgment in Fenice v Jerram Falkus which, I believe, reinforces the previously held view that the courts are unlikely to find that an adjudicator’s fees (both the hourly rate and time spent) are unreasonable. Continue reading →

REUTERS | Alex Domanski
July 20, 2011

Health and safety in the construction industry: under the spotlight again?

The latest HSE figures show that fatalities on construction sites rose in 2010 (from 41 to 50) for the first time in four years.

This was not a revelation: every week the industry press reports a serious accident on a construction site somewhere in the country, but it still shocked me. With all the recent focus on health and safety in the industry, why is it still such a dangerous place to work? Fragmentation is perhaps one of the biggest challenges to health and safety in the industry.

Continue reading →

REUTERS | Jason Lee
July 19, 2011

What does hold harmless mean? What is an indemnity anyway?

I was talking to a Dutch lawyer at a conference the other day. He asked me what “hold harmless” meant and whether it was necessary to use it when drafting an indemnity under English Law. The conversation went on to discuss whether giving an indemnity was better than an ordinary contractual obligation (or worse – depending on whether you are giving or receiving).

I suggested that there is a sort of a hierarchy in the drafting of contractual obligations. They seem to sit one on top of the other like layers in a wedding cake.

Continue reading →

REUTERS | Neil Hall
July 19, 2011

Scheme amendments published. Was it worth the wait?

It seems a long time since I wrote about the suggested amendments to the Scheme for Construction Contracts 1998 in England. It probably feels a long time because it was 15 months ago.

Over the last week or so the English, Welsh and Scottish governments have all published their amendments to the Scheme and the Scottish version of the Scheme. They are gearing up to the amendments coming into force this autumn, when the amendments to the Construction Act 1996 come into force.

We have been waiting a long time for this, but I wonder if it has been worth the wait. Before I comment on a couple of the changes, there is one thing I would like to say. Continue reading →

REUTERS | Eric Thayer
July 13, 2011

Counterclaims and frolicking: does Urang change anything?

The recent case of Urang Commercial Ltd v Century Investments and another, has caused concern that it is difficult to reconcile with the existing authorities, particularly those where the adjudicator has taken too narrow a view of his jurisdiction.

In my view there is no conflict with this line of authority. The case instead shows that, no matter how summarily an adjudicator dismisses a counterclaim, his decision is still a decision. Continue reading →

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