Monthly Archives: May 2012

REUTERS | Lisi Niesner
May 30, 2012

Can a party counterclaim against adjudication enforcement?

The law regarding the enforcement of adjudication decisions has been relatively settled for some time. Regular readers of the PLC blogs will be familiar with the basic concepts. Time and time again decisions from the courts have confirmed that, so long as an adjudicator asks himself the correct questions, acts within his jurisdiction and manages to keep on the right side of the rules of natural justice, his decision will be enforced, even if it is actually wrong in law or in fact.

Having said all that, it’s still possible for a surprising decision to come along every once in a while. This post looks at just such a surprise.

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REUTERS | Juan Carlos Ulate
May 30, 2012

May 2012 digest: Queen’s Speech and bonds

F. Scott Fitzgerald, The Great Gatsby:

“And so with the sunshine and the great bursts of leaves growing on the trees, just as things grow in fast movies, I had that familiar conviction that life was beginning over again with the summer.”

Summer has finally arrived and, after all the rain over the last couple of months, it is a welcome thing, not least because we have the double bank holiday just around the corner.

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REUTERS | Yuriko Nakao
May 29, 2012

Keep to your costs management budget

The TCC’s pilot scheme on costs management (which is governed by Practice direction 51G) has now been in force for over six months. Rather surprisingly we have yet to see a judgment from that court relating to the workings of the pilot, although an interim report was produced by Nicholas Gould and others in February. This indicated mixed opinions of the pilot. It was recognised that the pilot had assisted with early attention to costs, but concern was expressed at the time it takes to comply with it.

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REUTERS | Issei Kato
May 29, 2012

Conundrum about which adjudication rules apply

Picture this scenario. Your construction contract:

My question is, when a dispute is referred to adjudication in 2012, should the adjudicator apply the “most recent” rules, which have been updated to take into account the Construction Act 1996 changes, or is it more appropriate to use the rules that pre-date that change?

I ask this question because that’s a scenario I recently had to contend with. Continue reading →

REUTERS | Arnd Wiegmann
May 22, 2012

Being certain in your endeavours

When negotiating commercial contracts, parties are often preoccupied with what level of obligation to accept, whether this is “reasonable endeavours”, “best endeavours” or some other standard. Alternatively, they use such terms as some sort of compromise wording where they can’t quite agree or identify what is actually required.

Importantly, they often neglect to consider the object of these endeavours. What practical actions will the parties be expected to take to satisfy these obligations? If the object of the obligations is uncertain, then the agreement may not be enforceable at all, for example agreements to agree. At the other extreme, the obligation might be far more onerous than the parties intended at the time of drafting. Continue reading →

REUTERS | Pillar Lee
May 22, 2012

When the adjudicator gets it right

So often over the last few years I’ve found myself commenting on judgments where the adjudicator has done something wrong, whether that is a breach of the rules of natural justice or some other procedural error that has rendered his decision unenforceable. Therefore, I have rather enjoyed reading two recent judgments where, for a change, it seems the adjudicators (Mr Smith and Mr Mouzer) were right.

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REUTERS | Alexander Demianchuk
May 15, 2012

Withholding notices and adjudicators’ decisions

Last week I wrote about the severance points in Working Environments v Greencoat, but I think the withholding notice points that arise from Akenhead J’s judgment are equally interesting.

As I’m sure everyone is familiar with section 111 of the Construction Act 1996 and the requirements of a withholding notice, I’m not going to set them out here. Instead, I’m going to focus on the relationship between withholding notices under section 111 and adjudicators’ decisions. Continue reading →

REUTERS | John Kolesidis
May 15, 2012

BIM: the legal issues: what’s new?

My posts on building information modelling (BIM) over the last six months have touched on ownership and IP, preparedness and managing the professional team. In writing them, I’ve drawn attention to some of the key legal issues that will need to be considered as BIM develops.

There is a consensus emerging that BIM level 3 may require radical thought. This post highlights some recent developments.

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REUTERS | John Kolesidis
May 9, 2012

The new RICS measurement rules

I was pleasantly surprised to see a few fellow lawyers at the RICS recently, for the launch of its New Rules of Measurement (NRM) and the accompanying QS & Construction Standards (the Black Book). I had thought this was classic “QS’ing for QSs” territory and that I was the only lawyer sad enough to be remotely interested. Maybe others were tempted by the (as it happens, rather good) free breakfast on offer. Or perhaps the prospect of another rallying call from the Chief Construction Adviser (Paul Morrell) was the big draw.

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