William Wordsworth, Resolution and Independence:
“There was a roaring in the wind all night, the rain came heavily and fell in floods, but now the sun is rising, calm and bright.”
Our monthly digest often starts with a weather-related quote, and this month is no exception, what with all the rain and flooding that the country has experienced since Christmas. Continue reading
A client called me recently to discuss an issue that is probably familiar to many clients. On this particular project the pace of work is slowing, the contractor has missed a number of key programme dates and completion by the contractual date for completion is looking very unlikely. The contractor is obliged to progress the works with due diligence. Is it in breach of this obligation?
The principle that an adjudicator should not go off on a frolic of his own is clear and well established. If he does, he breaches the rules of natural justice and his decision will not be enforced by the courts. Many examples exist in the law reports of what happens when the adjudicator veers away from the parties’ submissions, starts relying on his own knowledge and expertise and, somewhere in the process, crosses the line. It may sometimes look like a fuzzy line, even to regular users of adjudication, but there is still a line that should not be crossed.
It goes without saying that one of the most important advantages of the “rule of law” for commercial parties is the right to enforce contractual obligations. Coupled with this is a need for contractual certainty. The law is there to enforce rights, particularly where those rights have been agreed upon. It provides a system for the resolution of disputes as to what those rights are.
Many years ago (I’ve noticed that I keep saying that nowadays) I wrote a dissertation entitled “The Autonomous Contract”. This looked at the question of whether a commercial contract between experienced parties could be completely self-regulating, with no possibility of interference by the courts, except to enforce its terms. Was it possible to draft the perfect exclusive remedies clause? Continue reading
Academics and judges have spent many hours discussing and identifying the difference between a latent defect and a patent defect in a construction project. But does the distinction matter?
This post considers a defect that appears just after the contractual defects liability period has expired and argues that the distinction does matter, but perhaps not as much as you might think. Continue reading
I identified an increased awareness by experts of their duties and obligations as one of the items in my 2014 “wish list“. I did this because of the sheer number of recent cases where the court was critical of the experts and their evidence. For example, last year I commented on:
In the first TCC case to be published in 2014, the experts’ evidence was under scrutiny once again. Continue reading
It is well recognised that because of its consensual foundation, arbitration can be difficult as a means of settling complex multi-party and multi-contract disputes. This has historically been a problem for construction practitioners and clients because an ever increasing proportion of large disputes are complex and involve multiple contracting parties.
The background to this case is well known. The Sun newspaper reported that the then Chief Whip of the conservative party had engaged in a foul mouthed rant against police officers at the entrance of Downing Street. Mr Mitchell alleged defamation against the Sun and the Sun defended the action on the basis of justification and public interest.
While the case was proceeding on the defamation costs management pilot scheme, the new costs management rules were used as guidance as to what sanctions could be applied under the court’s general powers of case management. Continue reading
I’m unsure if it’s now too late to say this, but happy New Year to you all. I signed-off 2013 by talking about my fear of Christmas games. Well, I can proudly say that I was on the winning team in a game of Articulate (I was also on two losing teams but let’s not go there). It made my Christmas. Anyway, I digress.
Adjudicators, arbitrators and judges have to be careful in the language they use in decisions, awards and judgments, particularly when they are dismissing weak points. For example, you might see an adjudicator write something along the lines of “I have difficulty in accepting X’s case on this point because…”. What the adjudicator might actually be thinking is “you can’t seriously expect me to find for you on this point because…” or, as I heard a site agent so eloquently put it at a recent adjudication meeting, “you’re having a giraffe”. Some adjudicators might go further in criticising parties or their representatives, but personally I tend to steer clear of this manner of drafting.
Another area where approaches differ is the amount of comment an adjudicator might include in a decision which is not strictly necessary to the outcome of that decision. I was interested to see that this is what the adjudicator did in Alexander & Law v Coveside. Continue reading
It’s that time of year again when we start looking forward and wondering what the next 12 months will hold. From all of the items that I wished for last year, one was to see West Ham secure the lease on the Olympic stadium. I was particularly pleased to see that one come to fruition. As well as a future new home, the boys also managed to stay in the Premier League – it remains to be seen whether that will be the case this time next year!
