Monthly Archives: November 2011

REUTERS | Andrew Winning
November 30, 2011

November digest 2011: new standard documents and adjudication

Percy Bysshe Shelley, Hymn to intellectual beauty:

“There is a harmony in autumn, and a lustre in its sky, which through the summer is not heard or seen, as if it could not be, as if it had not been!”

As November ends, so does autumn. The days are getting shorter and the nights are lengthening as the winter solstice draws near. For some of us (in the south east at least), it hasn’t always felt like winter was on our doorstep, with one of the warmest and driest Novembers on record, and many leaves still clinging to the trees. Continue reading →

REUTERS | Jason Lee
November 29, 2011

Economic duress: wrestling with the strong-arm tactics

These are tough times for the construction industry. The OECD has just announced that the UK is heading back into recession. Big deal – the construction industry has never got out of one that started in 2008 when Lehman Brothers fell over. The Chancellor’s announcement of an extra £30billion for infrastructure is obviously welcome, but it will take some time to materialise – and only then if he can convince the pension funds to stump up the cash.

Continue reading →

REUTERS | Jason Lee
November 29, 2011

Adjudicators’ decisions

Regular readers of this column will note that I have, on numerous occasions over the last three years, set out my views on an adjudicator’s actions (whether in terms of what they have or have not done, or have or have not decided). Well this post is no different.

Just a few weeks ago I wrote about why I thought it was fair that adjudicators should get paid, even when their decisions were unenforceable. I know not everyone shares that view and after receiving some well-made responses to my post, I’m now wondering whether I should clarify it and say “yes, but…” in true lawyer style, since I’m beginning to think that, like all things, there must be exceptions to that rule. The judgment in Carillion v Smith also interested me and, in particular the timing of the decision in the context of a Part 8 application. Continue reading →

REUTERS | Neil Hall
November 29, 2011

Can the employer use signed draft documents in place of fresh engrossments?

This post uses a recent case to consider whether a draft collateral warranty, signed as a deed, can be used by an employer in place of a formal engrossment. Can an employer complete the missing details and use the collateral warranty to give rights to a beneficiary? Might a contractor be able to stop the employer using and relying on that executed draft? Continue reading →

REUTERS | Jason Lee
November 22, 2011

NAP v Sun-Land: not such a bad result after all?

Last week Matt blogged about the case of NAP v Sun-Land. He made the point that “it was clear to me that the employer’s representatives were less familiar with the adjudication process than one might like…”. While that may well have been the case, the employer’s representatives nevertheless succeeded in achieving a partial stay of the adjudicator’s decision, so arguably, it was not such a bad result after all.

Let me explain how they achieved the partial stay and the interesting issue that arises from the case. Continue reading →

REUTERS | Jason Lee
November 22, 2011

Don’t let the Pre-Action Protocol go

A Technology and Construction Court (TCC) working party is undertaking a review of the Pre-Action Protocol for Construction and Engineering disputes. I understand that there is support from some quarters for its abolition.

I would like to add my voice to Catherine Gelder’s blog: to stand up for the Protocol and record my support for it. I urge others to do the same.

The Protocol, in my view, performs a useful function and it would be a retrograde step to see it go. No doubt, its working could be improved. Learning from our experience so far, I think the Protocol should be amended, not abolished. Continue reading →

REUTERS | Petar Kujundzic
November 21, 2011

Do adjudication rules’ costs provisions comply with amended Construction Act 1996?

There has been considerable debate over the meaning of section 108A of the Construction Act 1996 (as introduced by the LDEDC Act 2009). Most of that debate has centred on the interpretation of section 108A(2) and whether imprecise drafting means that something like a Tolent clause may still be permitted in certain circumstances. However, some in the industry are beginning to raise concerns about whether a number of well-known adjudication rules comply with section 108A(1). Part of this concern relates to the meaning of “allocation”. Continue reading →

REUTERS | Navesh Chitrakar
November 16, 2011

Challenging an arbitrator’s award is hard to do

If you have agreed in your construction contract that any dispute will be referred to arbitration, rather than the courts, the arbitrator’s decision has to be seriously wrong before the court will “interfere” and give leave to appeal the award. Despite this, cases involving appeals from an arbitrator’s award on a point of law under section 69 of the Arbitration Act 1996 seem to be flavour of the month.

In HMV v Propinvest (not yet reported), the Court of Appeal considered the question of appeals under s.69(3)(c)(i), which provides that leave to appeal on a point of law shall be given only if the court is satisfied that, on the basis of the findings of fact in the award, the decision of the tribunal on the question of law is obviously wrong. Continue reading →

REUTERS | Christian Charisius
November 15, 2011

Horses for courses in adjudication

Last week, I commented on the importance of the parties ensuring their dispute is in a safe pair of hands. At the time, I was alluding to the importance of getting a competent adjudicator, who knows what he is doing and will not let the parties down (by which I mean, having an enforceable decision). However, my “safe pair of hands” idea could apply equally to a party’s own representatives.

This thought was brought home to me most recently by Edwards-Stuart J in NAP v Sun-Land. Continue reading →

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