Practical Law Construction:
Before two-thousand-and-eight
You had a lot on your plate
On law to advise
Words blurring your eyes
What was to be your poor fate?Now in two-thousand-thirteen
We’re five years old and still keen
All those tweaks to the Acts
Myriad cases and facts
We make sure that the best bits are seen
You may be surprised to hear that Practical Law Construction turned five this month and what a five years it has been, so happy birthday to us. Continue reading
Whether an adjudicator should be told about court declarations under CPR Part 8 during an adjudication was the jump out point for me when I read Edwards-Stuart J’s judgment in Glendalough Associated SA v Harris Calnan Construction Co Ltd. However, in contrast to the same judge’s decision in McGee v Gear last year, this time he did want part of the judgment communicated to the adjudicator before the adjudicator made his decision.
In Glendalough Associated SA v Harris Calnan Construction Co Ltd, Edwards-Stuart J considered three issues:
The circumstances surrounding this adjudication were, to adopt the court’s description, “unusual”. The outcome underlines that jurisdictional challenges need to be made at the outset and that the court will only interfere with the adjudication process in the most clear-cut of cases. Continue reading
The real estate industry can be slow to react to innovation. The slow uptake of third party rights in lieu of collateral warranties is a classic example of this: the Contracts (Rights of Third Parties) Act 1999 (Third Party Rights Act 1999) is 14 years old, yet there are still parts of the industry that do not trust third party rights.
Ironically, the recent judgment in Parkwood Leisure Ltd v Laing O’Rourke Wales and West Ltd suggests that perhaps our scepticism might have been better directed at collateral warranties. If Parkwood is correct, then for the last 17 years it would seem that the industry has fundamentally misunderstood the nature of some of the collateral warranties that it has been writing. Continue reading
Public procurement is a hybrid of commercial and public law. It comprises a set of statutory rules, based on European Union law principles of non-discrimination and transparency, which are designed to ensure fair competition between companies from different member states. If a public body (a “contracting authority”) infringes the rules, an economic operator who may suffer loss as a result may bring an action to set aside the decision and/or claim damages. The money at stake is public money and the defendants are either government bodies or other entities entrusted with public functions.
This post considers why parties mediate a procurement dispute and some of the special considerations that apply. Continue reading
We might have another 11 months until the Scottish referendum, but I’ll lay my cards on the table. I think partition of the UK would be a real shame so, if I had a vote (which I don’t), it would be “no”. While there are a variety of economic and political considerations, ultimately, it’s for purely selfish reasons. I love Scotland and its people, and am proud that we are part of the same united country. I would be sad to lose that.
I’m sure that civil servants and academics are currently considering the implications of independence on the Scottish legal system, particularly at Supreme Court level. However, my guess is that, at first instance and initial appeal levels, there are unlikely to be any differences. Scotland has its own legal system and, while judgments from England and Wales are persuasive, they are not binding.
In the field of construction law, we’ve seen Scottish and English judges taking different approaches to issues, for example concurrent delay and apportionment of global claims. Another area concerns the thorny subject of party costs in adjudications where the contract was entered into before the autumn 2011 amendments to the Construction Act 1996. That was highlighted again when Coulson J’s judgment in Pioneer Cladding v John Graham Construction was published earlier this month. Continue reading
Establishing whether an adjudicator had done his job properly is a difficult area and one that has troubled the courts on many occasions over the years. We have all read judgments following enforcement proceedings where one party alleged the adjudicator breached the rules of natural justice because he failed to consider a particular issue or defence. It is always a question of fact how the case turns out and whether the court enforces the adjudicator’s decision or not.
The issue came up again recently in Stuart-Smith J’s judgment in KNN Colburn v GD City Holdings and also in Akenhead J’s judgment in CG Group v Breyer Group. Jonathan has written about both judgments (see Read all about it: adjudicator didn’t commit a serious breach of the rules of natural justice and Take note of when your adjudication timetable starts). However, he did not specifically address the argument that Stuart-Smith J’s judgment may be in conflict with Akenhead J’s judgment. Continue reading
The Wimbledon v Vago principles to be applied on an application for a stay of execution of an adjudicator’s decision are familiar to all. Indeed, most practitioners would consider there was nothing left to be worked out by the courts.
However, in his decision in Pioneer Cladding Ltd v Graham Construction Ltd, Coulson J had to consider a “novel” point. Continue reading
An aggrieved tenderer will always want to find out as much as possible about what happened during a procurement process in order to fully understand why its bid failed. For most procurements (other than those either under threshold or for Part B services), the Public Contracts Regulations 2006 (SI 2006/5) (and as amended) (Regulations) contain their own mechanism (under regulation 32) for the communication of relevant comparative information to the tenderer about its bid and that of the winner, to enable it to gain that understanding.
However, it is also the case that the level of information that the contracting authority is willing to provide at that stage can be extremely varied. Sometimes it will provide the barest possible information, leading to the inevitable challenge that regulation 32 has not been complied with, and the standstill period has therefore not been engaged. On other occasions, significant information will be supplied, which may in turn open up avenues of enquiry for the losing tenderer to ask extra questions, or to request further information or documents. Continue reading
Berwin Leighton Paisner’s (BLP) third annual arbitration survey indicates that most arbitration users feel that document production adds significant delay and cost to the process, yet rarely contributes much to the outcome of the arbitration. It also indicates that tribunals and parties are struggling to get to grips with e-disclosure, and that tribunals are often not up to speed on the issues when hearing document production applications.
In light of this, should we simply do away with document disclosure and accept that it may, in certain circumstances, be possible and indeed appropriate to get to the right answer without this extensive trawl through the documents? After all, the adjudication of construction disputes typically operates on this basis and more often than not results in an outcome that the parties choose to live with as the final determination. Continue reading
