Monthly Archives: August 2013

REUTERS | Herwig Prammer
August 28, 2013

August 2013 digest: Ask and the Ashes

Lewis Carroll, Alice’s Adventures in Wonderland:

“I have answered three questions, and that is enough’, said his father; ‘don’t give yourself airs! Do you think I can listen all day to such stuff?'”

July 2013 may have been the third warmest and third sunniest on record (and the driest since 2006), but it all went with a bang at the beginning of August, with the return of our more familiar “summer” weather. The cloud and rain definitely had an impact on the outcome of the third test at Old Trafford, stopping play and allowing England to retain the smallest trophy known to sporting types before the start of the shooting season. The Ashes wasn’t over though and, in the fourth test, a demon bowling display from Stuart Broad meant we won the series outright. Even then there was more to come, with the fifth a nail-bitter, finishing in a draw with just four overs left to bowl. Continue reading →

REUTERS | Paulo Whitaker
August 20, 2013

Experts again

You often know when you start reading a judgment how the case is going to turn out by the way the judge describes the parties’ expert witnesses and witnesses of fact. I got that feeling recently when reading Akenhead J’s judgment in National Museums and Galleries on Merseyside v AEW and PIHL/Galliford Try. Even if the judgment hadn’t mentioned the liability concessions made by the architect and contractor before and during the trial, I’d have known the museum won without having to turn to the end to find out that it had been awarded damages of over £1.1 million.

Are you wondering why? Continue reading →

REUTERS | Sean Yong
August 16, 2013

Are adjudication costs recoverable in subsequent litigation?

Adjudication doesn’t come cheap. In recent years, the cost of adjudicating has become one of the most common criticisms of the whole process. As we are often reminded, it was always meant to be about cashflow, to introduce a process that was interim-binding and that would allow the parties to keep working together while, at the same time, ensuring the contractor (or sub-contractor) got paid and the project got built.

Dyson J recognised this back in 1999 in Macob v Morrison when, in the first adjudication enforcement case, he said it was a “speedy mechanism for settling disputes in construction contracts on a provisional interim basis”.

Over the years, the process has moved forward, with parties more tactically astute and their arguments and submissions more sophisticated. However, cashflow remains the central theme. As Ramsey J commented in True Fix v Apollo, cashflow is the “essence of adjudication” and “it is imperative that cashflow is maintained as a priority in the construction industry”. Continue reading →

REUTERS | Eduardo Munoz
August 13, 2013

Ask the team: is it safe to use correspondence as a contract document?

As the employer and contractor on a construction and engineering project get ever closer to concluding negotiations and signing their building contract, they are often settling technical details of design or specification. Typically, they do so by e-mails, or perhaps minuted meetings. Should those emails or minutes form part of the final contract? Continue reading →

REUTERS | Sukree Sukplang
August 13, 2013

Is arbitration a viable means of avoiding mandatory costs budgets in the TCC?

A few weeks ago I spent an interesting evening at the Rolls Building taking part in the current consultation on mandatory costs budgeting. The consultation is being chaired by Sir Peter Coulson and, amongst other things, it is considering the desirability of retaining the Admiralty and Commercial Courts’ blanket exception to the mandatory costs budgeting and the current value-based exception for the TCC, the Chancery Division and the Mercantile Courts (claims in excess of £2m are excluded).

Continue reading →

REUTERS | Petar Kujundzic
August 6, 2013

The unpredictable nature of adjudication and enforcement proceedings

We are all familiar with the principle in English law of precedent and its binding or persuasive nature (depending on where the precedent comes from). We are equally familiar with the court’s ability to distinguish one judgment from another, to not follow previous authority or precedent and to rely on the individual facts to do so. It is well-established that each case will turn on its own facts and it is precisely because of this principle that it is often difficult to predict which party will be the more successful one in any claim that reaches the courts.

Continue reading →

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