Monthly Archives: March 2014

REUTERS | Thomas Peter
March 31, 2014

March 2014 digest: spring time

Percy Bysshe Shelley, The Question:

“I dreamed that, as I wandered by the way, bare winter suddenly was changed to spring.”

This month, with the vernal equinox on 20 March, winter officially turned to spring in the northern hemisphere. It was a time when day and night were the same length and it heralded the start of warmer and sunnier days (hopefully). We also lost an hour’s sleep!

March is also budget time. This year saw the Chancellor deliver his fifth budget and we told you all about the construction, property, environmental and tax announcements. You can find out more on our budget page, including comments from leading tax experts.

With spring comes new beginnings. Continue reading →

REUTERS | Ricardo Moraes
March 26, 2014

“The Legend of Sleepy Hollow” – pitfalls of a failed novation

With design and build (D&B) now firmly established as the procurement route of choice for many UK building projects, novation is a popular way of ensuring that single point responsibility for design rests with the contractor. However, the recent decision in Hillcrest Homes Ltd v Beresford and Curbishley Ltd reminds us that we must not take it for granted. In that case, a novation agreement executed by the structural engineer after practical completion was held not to be effective to transfer its appointment to the contractor. As a result, the employer remained responsible for structural design defects as between it and the contractor.

Continue reading →

REUTERS | Bob Strong
March 25, 2014

Behold the Celtic adjudication tiger (almost)

I was lucky enough to travel to Dublin a couple of weeks ago to talk at a conference about the Construction Contracts Act 2013, Ireland’s long awaited answer to the UK’s Construction Act 1996. My job was to talk about my experience of construction adjudication and how this might be relevant to adjudication in the Emerald Isle. I thought that it might be useful to set out some of the key features and issues that cropped up at the conference.

Continue reading →

REUTERS | Ilya Naymushin
March 18, 2014

ICC Infrastructure Conditions of Contract re-launched

On 4th March 2014 I attended a presentation at the Society of Construction Law (SCL) by John Uff QC and John Banyard from the drafting committee concerning the re-launch of the ICC Infrastructure Conditions of Contract.

Originally, these were the ICE Conditions of Contract familiar to many generations of civil engineers. However, they have had a chequered history of late having been discontinued by the ICE in favour of NEC in 2010. Subsequently, ACE and CECA took them over and in 2011 they issued a suite known as the ICC Infrastructure Conditions of Contract. However, they remained substantially in the same form as the original ICE version. Confused? Continue reading →

REUTERS | Arnd Wiegmann
March 17, 2014

Ethics for advocates?

Cynics may argue ethics are the last thing advocates need but while lawyers in the UK are highly regulated, the position is less clear in international arbitration. This was one of the topics addressed by Professor John Uff CBE QC in the sixteenth King’s College Construction Law Association (KCCLA) Sweet & Maxwell talk, which took place earlier this month. As he pointed out, advocates in different jurisdictions are subject to different regimes. There is an increasing concern about how advocates behave. This led to the introduction of the IBA Guidelines on Party Representation in International Arbitration (May 2013).

Continue reading →

REUTERS | Alex Domanski
March 12, 2014

Does the court have to sanction all extensions to the litigation timetable?

We are nearly one year into the Jackson reforms, but it would be fair to say that the full implications of the reforms are still being worked out by the courts. How the changes are operating in practice has generated much debate in the legal press, although much of the coverage has focused on the implications the rule changes might have on budgeting and cost recovery. The court’s no nonsense approach is now impacting on a party’s right to rely on expert and witness evidence.

Continue reading →

REUTERS | Yuriko Nakao
March 11, 2014

London and Edinburgh disagree on the application of Article 1 of ECHR to adjudication

My title may not be a very catchy one, but with Westminster and Holyrood currently disagreeing about everything (or so it seems), it certainly is a relevant one. I have talked before about English and Scottish judges taking different approaches to issues and the Court of Appeal’s judgment in Lindum Group v Fernie is another example.

Continue reading →

REUTERS | David Mdzinarishvili
March 11, 2014

Adjudication: reversing the burden of proof?

A contractor and employer are in dispute as to whether a particular item of work constitutes a variation under their contract. The contractor starts an adjudication to resolve the dispute. The claim succeeds and the resulting adjudicator’s award is paid by the employer, who then issues court proceedings to recover the money.

Does the employer have to prove that the adjudicator’s decision was wrong (that the relevant item of work is not a variation), or does the contractor have to prove that it was right (that the relevant item of work is a variation)?

As I will explain, while established wisdom has always been that an adjudicator’s decision should not reverse the burden of proof, recent Court of Appeal comments in Walker Construction (UK) Ltd v Quayside Homes Ltd would appear to cast doubt upon it. Continue reading →

REUTERS | Herwig Prammer
March 4, 2014

Multiple contracts or one contract that was varied? Adjudicators beware of the difference

I have been writing this column long enough to have covered many important cases over the years, although it was Jonathan who looked at Akenhead J’s judgment in Air Design v Deerglen back in early 2009. That case saw the Fiona Trust principles applied to an adjudication clause. It also started the line of authorities dealing with an adjudicator’s jurisdiction and the concept of when “substance and jurisdiction overlap“.

That issue was before the courts again recently, this time in Viridis UK Ltd v Mulalley & Company Ltd. Continue reading →

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