Monthly Archives: November 2013

REUTERS | Jumana El Heloueh
November 30, 2013

November 2013 digest: adjudication, insolvency and “plebgate”

John Clare, Autumn:

“The summer-flower has run to seed, and yellow is the woodland bough;
And every leaf of bush and weed is tipt with autumn’s pencil now.”

Weather-wise, November has seemed milder and calmer than normal. We may have had a bit of wet and windy weather at the start of the month, with some cold days and a scattering of snow to higher ground more recently, but winter certainly hasn’t got us in her grip yet. If there is a storm coming, it hasn’t arrived.

However, a storm is certainly brewing in the cauldron of civil litigation. Continue reading →

REUTERS | Herwig Prammer
November 28, 2013

What is natural justice in adjudication?

What steps can an adjudicator take to safeguard a decision against a challenge for breach of the rules of natural justice? When will a court refuse to enforce an award on natural justice grounds? And should adjudicators even be under a duty to comply with the rules of natural justice?

These are all topics that were debated at the Adjudication Society’s annual conference last week. Continue reading →

REUTERS | Navesh Chitrakar
November 27, 2013

Can a third party use adjudication?

The TCC’s decision in Parkwood Leisure Ltd v Laing O’Rourke Wales and West Ltd surprised many construction lawyers in concluding that collateral warranties can be construction contracts for the purposes of the Construction Act 1996. The court held that Parkwood Leisure (the beneficiary of a collateral warranty from Laing O’Rourke) could commence an adjudication against Laing O’Rourke in respect of alleged defects in their works.

The decision has been the subject of much comment and criticism from many quarters, one leading lawyer labelling it as “simply wrong”.

But what about third party rights granted to beneficiaries pursuant to the Contracts (Rights of Third Parties) Act 1999? Can they bring adjudication proceedings in the event of a dispute in respect of the rights granted to them? Continue reading →

REUTERS | Petar Kujundzic
November 26, 2013

CIArb dispute board rules – you decide

I will hold my hands up and admit that I was slightly sceptical when I saw that the Chartered Institute of Arbitrators (CIArb) was intent on publishing its own dispute board rules. Why do we need another set of rules?

Also, the CIArb’s stated aim of providing rules that cater not only for construction and engineering projects, but also for other commercial and IT projects, seemed slightly unnecessary given that there appears to be little evidence of an appetite to have dispute boards on other types of projects.

However, having read the CIArb’s consultation paper, I’m now fully converted. Continue reading →

REUTERS | Navesh Chitrakar
November 20, 2013

Do provisional sums always add up?

If you like puzzles, I’ve got some for you: they’re called provisional sums. Most people in the construction and engineering sectors are aware of provisional sums since they appear in many contracts and price build-ups. However, the impression I have is that “provisional sums” mean quite different things to different people. Perhaps a bigger puzzle is why we continue to use them as often as we do.

Continue reading →

REUTERS | Jose Miguel Gomez
November 19, 2013

Clarity is key in an adjudicator’s decision

It was Johnny Nash who sang about seeing clearly back in the early 1970’s. In Roe Brickwork Ltd v Wates Construction Ltd, that wasn’t something Wates thought could be said about the adjudicator’s decision in its dispute with a sub-contractor. Before Edwards-Stuart J, Wates argued that the adjudicator’s decision should not be enforced because it lacked certainty.

Continue reading →

REUTERS | Ilya Naymushin
November 12, 2013

Experts who seek to defend the indefensible

The court’s criticism of the parties’ expert witnesses seems to continue unabated. It is a topic I have looked at many times, not least back in August when I discussed Akenhead J’s judgment in National Museums and Galleries on Merseyside v AEW and PIHL/Galliford Try. In all the criticism leveled at the experts, one particular comment stood out for me; the fact that AEW’s expert architect admitted in cross-examination that he was “seeking to defend the indefensible” for those instructing him.

Criticism of the experts has arisen again, this time in the context of an expert who just didn’t have the appropriate expertise. Continue reading →

REUTERS | Fabrizio Bensch
November 6, 2013

Launched and ready for use: TECSA’s e-disclosure protocol

On 1 November 2013, Edwards-Stuart J formally launched a new e-disclosure protocol to the masses as part of a stimulating and extremely well attended all-day conference, “E-disclosure in practice”. The protocol is the brainchild of Steven Williams and the TeCSA e-disclosure working group.

The event was organised by TeCSA, TECBAR and the SCL to provide practical guidance on the e-disclosure process. As well as a range of extremely knowledgeable speakers, all of whom have worked “at the coal face” of e-disclosure, the involvement of Edwards-Stuart J as the key note speaker and the presence of Stuart-Smith J showed just how seriously the TCC are taking the subject of e-disclosure. Continue reading →

REUTERS | Ahmad Masood
November 5, 2013

Waive goodbye to your jurisdictional challenge

In the early ’80’s, Soft Cell sang Say hello, wave goodbye. It probably isn’t as well known as the dance floor-filler that is Tainted Love, but it is a song that came to mind when I read Akenhead J’s judgment in Brims Construction v A2M Development Ltd. If you are wondering why, it is because the court held that A2M had waived goodbye to any right to raise a jurisdictional challenge.

Continue reading →

REUTERS | Mike Blake
November 5, 2013

Warning about unreasonably refusing to participate in ADR as Halsey principle extended

Almost ten years ago, the Court of Appeal addressed, as a matter of principle, the extent to which it was appropriate for the court to use its powers to encourage civil litigants to settle their disputes. In Halsey v Milton Keynes General, it held that a successful party can be deprived of all or part of its costs if it unreasonably refused to agree to ADR.

Last month, the Court of Appeal modestly extended this rule to include silence in the face of an invitation to participate in ADR. In PGF II SA v OMFS Company 1 Ltd, it held such silence is, as a general rule, of itself unreasonable.

In PGF, the claimant had twice written to the defendant asking it to mediate and, if it refused to do so, to say why. The defendant failed to respond. The Court of Appeal held that the defendant had unreasonably refused to mediate and penalised it with a costs sanction.

Several important points arise out of this decision. Continue reading →

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