Monthly Archives: March 2013

REUTERS | Sharif Karim
March 27, 2013

March 2013 digest: will the winter ever end?

Lewis Carroll, Alice’s Adventures in Wonderland and Through the Looking-Glass:

“I wonder if the snow loves the trees and fields, that it kisses them so gently? And then it covers them up snug, you know, with a white quilt; and perhaps it says ‘Go to sleep, darlings, till the summer comes again’.”

It may officially be spring, but it feels like spring is on hold this year. With biting cold winds and snow blanketing much of the country, it definitely feels more like January than March, and it looks certain that all modern March temperature records will be broken (but not in a good way). Much of the animal and plant world may sensibly still be hibernating, but that hasn’t been the case in the legal world. Continue reading →

REUTERS | Eric Thayer
March 27, 2013

Rainy Sky revisited – common sense in the TCC

I am always nervous when contracts that I had a hand in drafting end up in the High Court. Thankfully it hasn’t happened too often, but when it does there is an inevitable frisson as I wonder what the judge will make of it. Will he agree that my drafting means what I intended it to say? Will he give it an entirely different interpretation? Or – worst of all – will he (to quote Salmon LJ) condemn it as a “farrago of obscurities”?

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REUTERS | Jumana ElHeloueh
March 26, 2013

When an expert breaches his professional code of conduct

Over the last few months both Jonathan and I have written about various aspects of expert evidence, whether that is on the difficulties an expert may face, educating experts or what an appraiser is. However, another area of expert evidence that seems to get little coverage is what an adjudicator should do, if they suspect one of the experts involved in the dispute has breached his professional duties in some way.

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REUTERS | Adrees Latif
March 19, 2013

Arbitrating after adjudication

I’m sure most people are familiar with the concept of temporary finality. Coulson J describes it as “the essence of the adjudication process”. He goes on to explain that it is one of the principal reasons why the courts endeavour to enforce adjudicators’ decisions, provided they have answered the right question (paragraph 3.100, Coulson on Construction Adjudication).

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REUTERS | Mike Blake
March 13, 2013

Recovering costs under late payment legislation

Have you ever been involved in negotiating a contract term that seemed eminently sensible, only to find that its application was rather more complex than initially supposed? Sometimes I feel that Parliamentary draftsmen must feel the same way, trying to draft legislation of general application against a backdrop of a huge existing body of law and varying commercial practices.

The amendments to the Late Payment of Commercial Debts (Interest) Act 1998, which are coming into force on 16 March 2013 under the Late Payment of Commercial Debt Regulations 2013, are a case in point. Continue reading →

REUTERS | Ina Fassbender
March 12, 2013

Abolish section 106? I’m not so sure M’Lud…

For those of you that haven’t read it yet, I would urge you to read the judgment in Westfields Construction Ltd v Clive Lewis. It was an application to enforce an adjudicator’s decision, and I assure you that the rest of Coulson J’s judgment lives up to the teaser in the opening paragraph:

“Although the sum claimed is just £17,393.91 plus interest, the application has been hotly contested. There are seven witness statements, including four from the defendant alone. In addition, and unique in my experience, the parties were permitted… to call oral evidence.” Continue reading →

REUTERS | Esam Omran Al-Fetori
March 12, 2013

Are the courts moving to a more restrictive approach to exclusion clauses?

While lawyers were all brought up on the principle of “freedom to contract”, there appears to be a growing trend that the courts are prepared to take a more restrictive approach when it comes to construing the scope of an exclusion clause. The latest example of this can be found in the Court of Appeal’s judgment in Kudos Catering (UK) Ltd v Manchester Central Convention Complex Ltd.

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REUTERS | Alex Domanski
March 6, 2013

When should you throw in the towel? Contempt: a step too far

I had the pleasure of sitting with Akenhead J on 22 February 2013 as part of the marshalling scheme run by the TCC, a scheme which I would thoroughly recommend.

The court heard the next round in the long-running dispute of Berry Piling Systems Limited v Sheer Projects Limited. This dispute has been through the process of adjudication, arbitration, and enforcement proceedings in the TCC, culminating in an application for committal for contempt against two of Berry’s directors.

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REUTERS | Arnd Wiegmann
March 6, 2013

Cost Management in the TCC: here today, gone tomorrow?

My last blog on cost management was, I now appreciate, rather boldly titled “Cost management by the courts is here to stay”. I was writing in the context of the TCC but my thoughts were soon endorsed when the judiciary announced that the cost management regime would be applied to all multi-track cases in all courts save for the Commercial Court.

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