Monthly Archives: September 2013

REUTERS | Mike Blake
September 30, 2013

September 2013 digest: it was all about collateral warranties

Jennifer Hanson, Collateral Damage:

“The sweet September rain chased away the sun
Darkened up my skies as sorrow sweetly hung.”

As autumn approaches, so does the start of the Michaelmas court term. While the majority of court users may have been enjoying the summer recess (and the end of  a wonderful summer), a small team went before Akenhead J on a CPR Part 8 application to ask whether a collateral warranty was a construction contract. If it was, they could adjudicate their dispute. To the surprise of many, the court said yes. James Ladner told you about the judgment, John Hughes D’Aeth explained why he thinks the judgment is wrong and Matt Molloy discussed its implications for adjudicators and adjudication. We anticipate that many more column inches will be devoted to this judgment over the coming months. Continue reading →

REUTERS | Mike Blake
September 27, 2013

Tree root damage: making everyone pay?

It is commonly thought that homeowners are not liable for damage caused by the roots of trees on their property, because they lack the necessary degree of foresight. However this is no longer correct. In a decision of some significance, Ramsey J in Khan and Khan v Harrow Council and Sheila Kane has held that homeowners can be liable to neighbours for damage caused by tree root encroachment, even if they were personally not aware of the risk of damage.

Continue reading →

REUTERS | Lisi Niesner
September 25, 2013

A view from the bench: observations on the TeCSA marshalling scheme

I recently had the fortune of sitting on the TeCSA marshalling scheme, which allows junior lawyers specialising in technology, engineering or construction the opportunity to shadow TCC judges for one week. This gave me the unique opportunity to witness hearings from an entirely neutral perspective, without the normal influence of one’s own involvement in either side of the case.

We all know the usual list of do’s and don’ts for a successful hearing but, from an elevated (the marshal sits next to the judge on the bench), all seeing, all hearing perspective, it becomes even more compelling as to why strategic and rigorous case and hearing management is important. Continue reading →

REUTERS | Kim Hong-Ji
September 24, 2013

Read all about it: adjudicator didn’t commit a serious breach of the rules of natural justice

It was Mick Jagger that famously sang “You can’t always get what you want”. Well Mick, I’m pleased to report that I have got what I want; a case that proves the point I was making in a recent blog.

Back in July, I wrote about ABB Ltd v BAM Nuttall Ltd in which Akenhead J found that the adjudicator had committed a serious breach of the rules of natural justice by deciding a case on the basis of a clause that neither party had mentioned or even argued. At the time, I stressed that such cases are relatively rare, and that commentators, parties, and so on, should not get carried away on a wave of hysteria. The defendant in CG Group Ltd v Breyer Group Plc raised similar arguments, but this time Akenhead J found that the adjudicator had not breached the rules of natural justice. Continue reading →

REUTERS | Tobias Schwarz
September 17, 2013

Are adjudicators applying the “new” payment regime correctly?

The post-summer holiday construction law party season is well under way. So far I’ve been lucky enough to mix with the flamingos at Kensington roof gardens and the opera goers at Covent Garden. It was at one of these events that a couple of people, I’ll call them Jack and Jill, had a bit of a moan and claimed that some adjudicators were not observing the requirements in the Construction Act 1996 regarding payment notices and pay-less notices. Given Jack and Jill’s moans and the fact that we’re almost two years into the new payment regime, I thought that it was a good opportunity to review how the new payment regime is working.

Continue reading →

REUTERS | John Kolesidis
September 11, 2013

Collateral warranties and the Construction Act – a nasty surprise

After nearly 30 years in the construction law game, I should no longer be surprised when an unexpected decision comes along. But Akenhead J’s judgment in Parkwood Leisure Ltd v Laing O’Rourke Wales & West Ltd made me sit up and draw breath.

Last week’s Practical Law legal update notes that the decision will be a “surprise to most practitioners”. With great respect to the learned judge, I would go further and say that it is simply wrong. It is also likely to have highly undesirable ramifications for the negotiation of collateral warranties in future. Continue reading →

REUTERS | Jumana El Heloueh
September 3, 2013

Bias revisited – keeping your own counsel

Back in June, I wrote about Peter Smith J’s judgment in Mengiste v Endowment Fund for the Rehabilitation of Tigray and others. The post was all about a recusal application and, at the time, I drew parallels between the allegations of judicial bias in Mengiste and a challenge to an adjudicator’s jurisdiction.

Mengiste has recently been before the Court of Appeal. Lady Arden gave the leading judgment and it makes interesting reading, not least because she concludes that the judge should have recused himself because there was apparent bias. Continue reading →

REUTERS | Fabrizio Bensch
September 2, 2013

TCC decides that tenant collateral warranty is subject to statutory adjudication

In Parkwood Leisure Ltd v Laing O’Rourke Wales & West Ltd, Akenhead J was asked to determine whether a collateral warranty was a “construction contract” for the purposes of Part II of the Housing Grants, Construction and Regeneration Act 1996 (Construction Act 1996) and therefore subject to statutory adjudication.

The collateral warranty did not refer to adjudication but the tenant beneficiary (Parkwood) alleged that the warranty’s wording made it a construction contract that entitled Parkwood to bring a defects claims direct against the contractor in adjudication. Continue reading →

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