Monthly Archives: January 2012

REUTERS | Mike Segar
January 31, 2012

January 2012 digest: implied terms, party walls and procurement

Samuel Taylor Coleridge, Work Without Hope:

“And Winter slumbering in the open air, wears on his smiling face a dream of Spring!”

Before we turn our attention to events in 2012, it is sensible to start with two cases from the very end of 2011 (and ones that (almost) got away). After last month’s digest was published, Coulson J in the TCC considered implied terms in a sub-contract, withholding notices and declaratory relief under CPR Part 8. Since then, Leander v Mulalley has attracted considerable attention, both in terms of the judge’s comments on withholding notices and also its consideration (and rejection) of an implied term to proceed regularly and diligently with the works.

The other judgment that had construction practitioners expressing their views was Jackson LJ’s Court of Appeal decision in Lanes v Galliford Try. This time it was on the future of forum shopping in adjudication and apparent bias. Continue reading →

REUTERS | Arnd Wiegmann
January 31, 2012

When is a construction operation not a “construction operation”?

We’ve all been there – sitting quietly in our office when an adjudication referral lands on our desk. Straight away the clock is ticking and deadlines are looming. However, before you even begin drafting the response, there’s the small matter of checking whether the contract’s provisions are Construction Act 1996 compliant. This might be your first ground for challenge. You take a closer look and realise they aren’t. This is going to be a statutory adjudication under the Scheme for Construction Contracts 1998.

Continue reading →

REUTERS | Petar Kujundzic
January 31, 2012

Phoning a friend in adjudication

The phrase “I’ll phone-a-friend” may have started off as a lifeline in the television quiz show, Who wants to be a millionaire?, when people couldn’t answer a question, or were unsure as to the correct answer, but it has recently taken on a whole new meaning in the world of adjudication.

If you are not sure what I am talking about, I recommend you take a look at Lord Menzies’ judgment in Highlands and Islands Authority Ltd v Shetland Islands Council. Continue reading →

REUTERS | Jason Lee
January 24, 2012

Contractual obligation to progress construction works

The progress of a contractor’s works is often a key factor in a construction project completing on time. Construction contracts usually include terms that specify the progress required and the consequences if that progress is not achieved.

However, what is the position when the contract only gives the employer a right to terminate for the contractor’s failure to progress the works? Is the contractor obliged by an implied term to proceed regularly and diligently?

Continue reading →

REUTERS | Lisi Niesner
January 24, 2012

Forum shopping in adjudication

My last post looked at Jackson LJ’s Court of Appeal judgment on adjudicator bias in Lanes v Galliford Try. I had been wondering whether to address the “forum shopping” point when I saw PLC’s comment appear on my post. That, coupled with the fact that I’ve recently been approached to act in a matter where the ANB appointed an adjudicator that neither party wanted, was all the impetus I needed.

I agree with PLC’s comment that the forum shopping point has dominated the legal columns of the trade press, but wonder whether those commenting realise how common the practice really is? Continue reading →

REUTERS | Kim Hong-Ji
January 17, 2012

Remember: the grounds for withholding must be valid

Or should that be “The return of the pink socks”?

I appreciate that many of you won’t thank me for mentioning Christmas now that the new year is upon us, but the courts provided us with some last minute reading in the week leading up to… the end of Advent.

Not only did the Court of Appeal hand-down the eagerly awaited appeal judgment in Lanes v Galliford Try (which Matt discussed last week), but the TCC also handed-down three judgments, the most interesting of which (to construction dispute practitioners) was Leander Construction v Mulalley.  Continue reading →

REUTERS | Carlos Barria
January 11, 2012

Ask the team: what is an architect’s lien and when can I use one?

A lien is a right that entitles a party to hold on to assets in its possession pending payment of a debt owed to it. Specifically for architects (and other professionals), if the architect has prepared plans, it may hold those plans pending payment by its client. In England and Wales it is relatively rare to see a dispute about an architect’s lien reach the courts, but liens can and do arise.

Continue reading →

REUTERS | Mike Blake
January 11, 2012

BIM: mind the gap

As Building Information Modelling (BIM) continues to become one of the hottest topics in the construction industry, the stark differences between the aspirations of government and the readiness of the industry to implement BIM become even more apparent.

Before the Christmas break, I took a look at ownership rights and BIM. This post now highlights some of the issues that arise when different members of a project team have reached different levels of readiness.

Continue reading →

REUTERS | Yuriko Nakao
January 10, 2012

Court of Appeal decides adjudicator not biased after all

Last summer people were talking about HHJ Waksman QC’s judgment in Lanes v Galliford Try, not least because it looked to mark the end of adjudicators giving the parties their provisional view of the case they were being asked to decide. However, it seems that we don’t need to be so worried after all, as Jackson LJ in the Court of Appeal has reversed that decision.

Continue reading →

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