Monthly Archives: October 2011

REUTERS | Ognen Teofilovski
October 31, 2011

October 2011 digest: our third birthday

Lewis Carroll, Through the Looking Glass:

“I mean, what is an un-birthday present?
A present given when it isn’t your birthday, of course.
Alice considered a little. ‘I like birthday presents best’, she said at last.”

Amazingly, this month saw PLC Construction turn three. Back in 2008 when we launched, the industry was in the midst of a consultation over the Construction Act 1996 changes. Now, three years later, it finally feels like the calm after a storm. The effective date of the Construction Act 1996 changes has come and gone, the publishers of the major standard form contracts have issued their amendment sheets (NEC, RIBA, IChemE, PPC2000 and ICC) or new contracts (JCT) and we have reviewed and updated all of our maintained resources to ensure they are “ship shape and Bristol fashion”.

Time to turn our attention to other things… and as we do, please let us know if there are any documents or clauses that you would like us to publish. You can email us at constructionfeedback@practicallaw.com. Continue reading →

REUTERS | Fabrizio Bensch
October 26, 2011

ICC Rules 2012: do they really respond to today’s business needs?

International arbitration can sometimes be a lengthy process that does not always address the complex nature of construction disputes. The International Chamber of Commerce (ICC) has issued a revised set of rules for international arbitration, due to come into force from 1 January 2012 (the ICC Rules 2012). It hails these as being the “answer to today’s business needs”.

Continue reading →

REUTERS | Navesh Chitrakar
October 24, 2011

Ask the team: can I combine a payment notice and a pay less notice into one notice?

By now, most construction practitioners will be aware that Part II of the Construction Act 1996 has been amended by Part 8 of the LDEDC Act 2009. Among the many changes, this has introduced the pay less notice (in place of the withholding notice).

Therefore, the two key notices under the Construction Act 1996 (as amended) are:

  • The payment notice.
  • The pay less notice.

Under the Construction Act 1996 (as enacted), a paying party could combine a payment notice and a withholding notice. The question is, can a paying party still combine those two notices under the amended Act? Continue reading →

REUTERS | Toby Melville
October 18, 2011

The “simplified” Construction Act 1996 payment provisions (part 1)

In my last blog I talked about the repeal of section 107 of the Construction Act 1996 (which came into force on 1 October 2011). However, while the repeal of this section and the other amendments to the adjudication provisions are interesting, in my view, it is the changes to the payment provisions that will have a more significant impact on the industry:

  • On employers, contractors and sub-contractors as they try to grapple with the various different notices that now have to be given.
  • On lawyers, adjudicators and judges dealing with the inevitable payment disputes that will arise.  Continue reading →
REUTERS | John Kolesidis
October 17, 2011

Primary obligor: what is it, and would you like to be one?

One of my clients recently reorganised into a number of trading companies plus a holding company. They did not novate any existing contracts but wanted new contracts to be entered into by the appropriate trading company. The trading companies were brand new and therefore had no credit history. Some of the customers (and sub-contractors) were a bit “anxious” and asked for a parent company guarantee (PCG) from the holding company.

Continue reading →

REUTERS | Yuriko Nakao
October 11, 2011

Common sense applied to “unconscious bias” meaning

I have written about bias on several occasions, including to discuss Edwards-Stuart J’s judgment in Fileturn v Royal Garden Hotel last summer. On that occasion, the issue before the court was whether there was bias because of an alleged pre-existing relationship between the adjudicator and Fileturn’s representative in the adjudication. At the time, I wrote that I was pleased the court rejected the argument, noting that the world of construction adjudication is a small one. I don’t want to think about the implications if it had gone another way.

I was equally pleased to see Flaux J in the Commercial Court adopt a similar common sense approach to the question of unconsicous bias in A v B. Continue reading →

REUTERS | Mike Blake
October 5, 2011

Who’s suing whom in the TCC in 2011?

Although the High Court may not yet be the domain of hashtags and the twitterati, two important reports have been published that allow us to see what is “trending” in the world of litigation:

We have also researched new claims started in the TCC in 2011 to see what this year’s activity tells us about the state of the construction industry and the extent to which it is involved in litigation.  Continue reading →

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