Monthly Archives: October 2012

REUTERS | Adrees Latif
October 31, 2012

October 2012 digest: fork handles, four candles and adjudicators’ fees

John Clare, Remembrances:

“Summer’s pleasures they are gone like to visions everyone. And the cloudy days of autumn and of winter cometh on. I tried to call them back but unbidden they are gone.”

In the 1970’s, the Two Ronnies made famous a sketch about four candles, or was it fork handles? During October, PLC Construction reached the milestone of fork handles, by which we mean our fourth birthday. We didn’t pop any champagne corks in the office, nor do we expect many were being popped to celebrate a year of the Construction Act 1996 amendments. Despite last year’s fanfare, the amendments have met with a muted reaction and there has been no reported judicial guidance on the new payment or adjudication provisions. Continue reading →

REUTERS | Brian Snyder
October 30, 2012

How can parties to litigation make sure they get their costs back?

Sadly, there is some litigation that is very hard to settle. Some claimants are not very realistic about what their claim is worth or about whether they will recover their legal costs. Equally, some claimants are badly advised by either their lawyers or their experts about their prospects of success and how much they might recover.

If you are a defendant facing these sorts of claimants, how should you try to deal with it? The courts much prefer it when parties try to settle their disputes. While it is difficult to make offers to settle when the parties are a long way apart on the value of the claim, the courts do expect the parties to try nonetheless.

Continue reading →

REUTERS | Ognen Teofilovski
October 26, 2012

New Master of the Rolls arrives with a bang

Just the other day, I was reading Tony Bingham’s piece in Building about the return of Lord Dyson to the Court of Appeal as the Master of the Rolls. Tony ended his piece as follows:

“I am excited by the ‘re-appearance’ of this judge. What does he say now about this 14-year old dispute management scheme? Have we strayed off-piste?”

A couple of days later, Lord Dyson’s judgment in PC Harrington v Systech was published. In light of the conclusions he reached about adjudicators’ fees, I wonder what Tony (and a lot of other people) are thinking now. Continue reading →

REUTERS | Lisi Niesner
October 24, 2012

The importance of expert evidence

Expert evidence is pivotal in most construction and engineering disputes. This means that, as lawyers, we need to be on top of our game when it comes to expert evidence.

Most of us probably think that we are very good at managing the expert-lawyer relationship. However, the fact that expert evidence keeps coming in for robust comment in the TCC should be a lesson to us all. Continue reading →

REUTERS | John Kolesidis
October 17, 2012

Liability caps: does Ampleforth have anything to teach RIBA?

I recently blogged on Ampleforth Abbey Trust v Turner & Townsend Project Management Ltd and how the court in that case held that the liability cap in the project manager’s standard terms did not pass the Unfair Contract Terms Act 1977’s (UCTA) test of reasonableness.

RIBA’s recent announcement that it is about to release a 2012 version of its standard form consultancy agreements spurred me to think some more. How vulnerable to challenge under UCTA are terms excluding or limiting liability in standard form appointments, such as those produced by RIBA, RICS and ACE? Continue reading →

REUTERS | Paulo Whitaker
October 16, 2012

Strict liability for the escape of fire after Stannard v Gore

In Stannard (t/a Wyvern Tyres) v Gore, the Court of Appeal held that there is no special modification of the rule under Rylands v Fletcher for cases involving the escape of fire. It is an essential requirement of this rule that the “dangerous thing” brought onto the defendant’s land should escape. In so-called fire cases, where fire escapes but the “dangerous thing” does not, the defendant will not be liable under Rylands v Fletcher, notwithstanding that the “dangerous thing” may have played a role in the start or spread of the fire.

Continue reading →

REUTERS | Adrees Latif
October 16, 2012

First 12 months of the new payment provisions

In October 2011, I wrote a couple of blogs on the “simplified” Construction Act 1996 payment provisions. I concluded by saying that:

“…once the questions over the meaning of some of the amendments have been resolved, I actually think that the amendments will be quite effective at maintaining cash flow.”

One year on, I thought it was worthwhile reviewing how the new payment provisions are faring. Continue reading →

REUTERS | Kim Hong-Ji
October 10, 2012

Ask the team: what if damage is discovered after party wall work is completed?

What happens if the adjoining owner’s property is damaged when the building owner carries out his works, but the damage isn’t discovered until much later, after the building owner’s works have been completed?

In this scenario, let us assume that in 2009, the building owner gave the relevant party wall notices and a party wall award was made. The work was carried out in 2009-10 but the damage was only discovered in 2012. For simplicity, there was only one party wall surveyor, the agreed surveyor. Continue reading →

REUTERS | Petar Kujundzic
October 9, 2012

Adjudicator wrong on jurisdiction, again

I’ve lost track of how many times, over the last four years, that I’ve said it is tough being an adjudicator, given the pressures that are on us. With that in mind, it doesn’t surprise me when I read a judgment, only to discover the adjudicator did something that means his decision is not enforced.

In the latest instalment before the TCC in Leeds, HHJ Behrens said the adjudicator’s decision on his jurisdiction was wrong. I suppose it makes a change to finding that the adjudicator breached the rules of natural justice, although the end result is the same for the parties involved. Continue reading →

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