Monthly Archives: May 2013

REUTERS | Damir Sagolj
May 30, 2013

May 2013 digest: BIM, BIM and more BIM

William Shakespeare, Sonnet 18:

“Shall I compare thee to a summer’s day? Thou art more lovely and more temperate;
Rough winds do shake the darling buds of May, and summer’s lease hath all too short a date.”

We ended last month’s digest with a reference to the weather. It seems our jubilation at the sun’s return may have been short-lived, with plenty of rain, a late spring and little warmth to speak of over the last few weeks. If the weather kept you indoors, there has been plenty to read during May: Continue reading →

REUTERS | Aly Song
May 29, 2013

No implied term extending limitation period following adjudicator’s decision

Last week, Akenhead J handed down judgment in Aspect Contracts (Asbestos) Ltd v Higgins Construction plc. As he noted, it:

“…raises an interesting and important issue as to when in terms of limitation of action a party which is dissatisfied with the substance of an adjudicator’s decision needs to issue its proceedings or to raise any counterclaim in those proceedings to challenge and seek to overturn that decision.” Continue reading →

REUTERS | Alex Domanski
May 21, 2013

The Jackson ADR Handbook really is essential reading

Jackson LJ’s final report recommended that “there now needs to be a single authoritative handbook, explaining clearly and concisely what ADR is” and that “most judges and litigators would have the current edition of the proposed handbook on their bookshelves”.

The Jackson ADR Handbook was published in April 2013. It contains a foreword from Lord Dyson which says that the book is a direct result of Jackson LJ’s recommendation for such a handbook and that:

“It is properly authoritative. It is readily accessible. I cannot commend it more highly…”

The handbook really is essential reading for practitioners. It is also written in such a user-friendly way that it could be picked up by anyone who is involved in a dispute. Continue reading →

REUTERS | Jason Lee
May 21, 2013

Cases on good faith clauses are a bit like waiting for a bus…

Over the past 10 to 15 years, more and more construction contracts have included good faith clauses, and yet there are relatively few cases on this subject. However, over the past year we’ve had the first instance judgments in Mid Essex Hospital Services NHS Trust v Compass Group UK and Yam Seng PTE v International Trade Corporation (albeit this concerned an implied duty of good faith), and the Court of Appeal’s view of the former case. Now we also have Akenhead J’s judgment in TSG Building Services v South Anglia Housing.

Unlike the other cases, TSG v South Anglia is particularly relevant to the field of construction law because it concerns a good faith clause in a standard form of construction contract, namely the ACA Standard Form of Contract for Term Partnering (TPC2005). Although there were some bespoke amendments to the relevant clauses, I don’t think that anything turns on this. Continue reading →

REUTERS | Jose Miguel Gomez
May 21, 2013

Consequences of failing to tick a box in costs management

I am always worried that failing to tick the correct box on a form could have dangerous consequences, but it is reassuring to see that the TCC does not view such an error as fatal, at least when it comes to revising an approved costs budget.

Since the introduction of the costs management pilot scheme in the TCC, construction practitioners have been waiting to see how the court would deal with a party’s application to revise its costs budget, where it had not complied strictly with the practice direction. We have already seen the Court of Appeal’s decision in Sylvia Henry v News Group Newspapers Ltd, which looked at approved budgets in the context of the defamation pilot. An opportunity for the TCC arose recently in Murray v Neil Dowlman Architecture Ltd. Continue reading →

REUTERS | Mike Hutchings
May 14, 2013

What parts of the adjudicator’s decision can you challenge, if any?

In Willmott Dixon Housing Ltd v Newlon Housing Trust, an issue arose over the service of the referral notices on the adjudicator and the responding party (Newlon) in two adjudications that had been referred on the same day, to the same adjudicator, Mr John Riches. It transpired that Newlon did not receive the referral notices until after it had served its responses. Consequently, the adjudicator was asked to confirm when he received them.

Continue reading →

REUTERS | Ricardo Moraes
May 8, 2013

Good faith in practice: a view from the top

I recently attended a topping out ceremony organised by a developer client. At the ceremony, I was extremely interested to hear the developer attribute the early completion of this particular superstructure to the spirit of good faith in which the parties had worked. Having drafted the JCT-based building contract between the developer and the contractor, I knew that it did not contain an express obligation on the parties to act in good faith and that, traditionally, English law has been reluctant to imply such terms into contracts.

Continue reading →

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