Monthly Archives: August 2012

REUTERS | Andrew Winning
August 31, 2012

August 2012 digest: arbitration, adjudication and litigation

Pierre de Coubertin, the father of the modern Olympic Games:

“The most important thing in the Olympic Games is not winning but taking part; the essential thing in life is not conquering but fighting well.”

We are partway through the London 2012 Olympic Games and Paralympic Games and, so far, the British team has exceeded all expectations, with 65 medals and a top three placing. That is one place higher and several medals more than the 47 that the team won in Beijing four years ago. Let’s hope for the same success in the Paralympic Games, which have just got underway. Continue reading →

REUTERS | Sean Yong
August 30, 2012

Costs management moves a step closer

Over the last year or so, we have posted a number of pieces about costs management. Initially we looked at the extension of the Birmingham costs pilot into all TCC and Mercantile Courts and, subsequently, sought to encourage practitioners to take part in the survey that was reporting on the extended pilot. Michael Mendelblat also drew parallels with the pilot running in defamation actions, and cautioned parties about the need to maintain up-to-date budgets during that pilot.

As the date for the “big bang” of the Jackson LJ reforms looms closer and the current costs management pilot is set to continue until the end of March 2013, we thought it was time to consider what is next for costs management. Continue reading →

REUTERS | Alex Domanski
August 28, 2012

Delay in arbitration: is it really so bad?

Arbitration users’ perceptions of the speed of the arbitral process have been a bit of a roller-coaster. Initially arbitration was trumpeted as being speedier than litigation, but users have increasingly expressed frustration at the delays experienced in obtaining an arbitrator’s award. Earlier this year, Berwin Leighton Paisner (BLP) surveyed arbitration users regarding delay in the arbitral process, and if its findings are not shocking, they are certainly worthy of a raised eyebrow.

Continue reading →

REUTERS | Beawiharta
August 28, 2012

Global claims after Walter Lilly v Mackay

Each summer I normally spend some time updating my note on global claims. It’s not normally a particularly taxing job and, since the Scottish case of John Doyle Construction Ltd v Laing Management (Scotland) Ltd, there haven’t really been any significant developments in the law. However, this summer has been somewhat different, and my task has been significantly more taxing. Unless you’ve been utterly consumed with the heroics of Hoy, Ennis, Farah and the rest of Team GB, you will have read (or at least heard about) the important case of Walter Lilly v Mackay. One of the many subjects Akenhead J dealt with is global claims, and what he said is of great significance.

Continue reading →

REUTERS | Jumana ElHeloueh
August 21, 2012

Ask the team: could paying the contract administrator a percentage fee damage its independence?

A subscriber recently asked whether, if the employer under a building contract paid its contract administrator a percentage of the contract sum, that might affect the professional consultant’s duty to act independently and impartially.

This Ask the team considers some of the practical and legal questions involved, and suggests ways of avoiding the issue.

Continue reading →

REUTERS | Ilya Naymushin
August 21, 2012

One expert witness, two separate clients and two judgments

Two recent judgments caught my eye and, in particular, the references to an expert who appeared as an expert witness in both judgments.

For those that did not notice, the expert was instructed on behalf of:

REUTERS | Fabrizio Bensch
August 20, 2012

PPP and PFI: defending unavailability deduction claims

The first part of this post explored the increased number of unavailability deductions being levied on PFI and PPP projects. I explained the contractual provisions that must ordinarily be satisfied before an employer can establish any entitlement to levy unavailability deductions.

Here, I set out various means by which a party could attempt to defend such a claim.

Continue reading →

REUTERS | Ahmad Masood
August 14, 2012

The meaning of due diligence and reasonable endeavours

In Ampurius v Telford Homes, the High Court looked at two relatively common phrases in construction contracts, “reasonable endeavours” and a promise to carry out works “with due diligence”. It is important that parties concluding contracts and their advisers are aware of the interpretation that the High Court has placed on these phrases as, although every contract will be interpreted individually, there is a chance that these interpretations will be relied upon and followed in subsequent cases.

Continue reading →

REUTERS | Eduardo Munoz
August 14, 2012

Experts in adjudication when professional negligence claimed

I recently wrote about an expert’s role in construction disputes and, in particular, the role they play in adjudication. As I said then, there are no rules about using experts in adjudication, or protocols that cover how they should behave. An individual may be bound by guidance provided by his professional body (such as the RICS’ practice note on surveyors acting as expert witnesses), but that is as far as it goes.

Continue reading →

REUTERS | Jason Lee
August 8, 2012

Whoever said adjudication killed construction law?

Looking at the law reports, some may think that the only thing the TCC ever deals with these days is the enforcement (or not) of adjudication decisions. Whatever happened to construction law? Well, luckily it still lives and breathes. In Walter Lilly & Co Ltd v Mackay and DMW Developments Ltd, Akenhead J delivered a judgment that goes to the heart of many of the burning issues that have been causing construction lawyers to scratch their heads.

Continue reading →

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