Monthly Archives: April 2014

REUTERS | Robert Pratta
April 30, 2014

April 2014 digest: “the times they are a-changin”

Bob Dylan, Times they are a changing:

“Come writers and critics who prophetize with your pen, keep your eyes wide, the chance won’t come again

And don’t speak too soon for the wheel’s still in spin, and there’s no tellin’ who that it’s namin’

For the loser now might be later to win, for the times they are a-changin’.”

April is derived from the Roman name Aprilis which, in turn, comes from the verb aperire, meaning “to open”. As trees and flowers begin to open, it is an apt name for a month characterised by seasonal changes. Continue reading →

REUTERS | Alex Domanski
April 30, 2014

Mediation: some frequently asked questions

Mediation is fast becoming a popular method of alternative dispute resolution in many areas of law.

The courts’ support for mediation is evident from the many decisions, including PGF II SA v OMFS Company 1 Ltd  (which I looked at last year), emphasising that parties should attempt to resolve their dispute early and without being encouraged by the courts to do so. Indeed, section 14 of the White Book 2014 (Alternative Dispute Resolution) says that the message from the courts is that parties should seriously consider engaging in ADR without troubling the court or waiting for case management directions.

Although parties are alive to the idea of mediating their dispute, questions are often raised about how it all works. This blog tackles some of the questions frequently asked. Continue reading →

REUTERS | Ricardo Moraes
April 29, 2014

Not solving every problem

They say that the UK has weather instead of a climate. Here in Panama City, there is definitely a climate.

The temperature is in the mid-thirties (Celsius) every day regardless of the season. For eight months it is rainy, very rainy, with frequent thunderstorms. The record was set in 2002 when 562 mm of rain fell in one 24 hour period. (That’s nearly two feet.) Continue reading →

REUTERS | Petar Kujundzic
April 29, 2014

Let’s put section 105(2) of the Construction Act 1996 into Room 101!

We haven’t seen an adjudication enforcement judgment from Ramsey J in quite a while, so it was good to read Laker v Jacobs recently. I think it is quite an interesting case as it touches upon lots of “common” enforcement issues (such as jurisdictional challenges and an adjudicator’s use of the slip rule). However, it is the circumstances surrounding affirmation (referred to as approbation and reprobation in the judgment) and the court’s findings on the section 105(2)(c) exception that I think are really worth talking about.

Continue reading →

REUTERS | Bob Strong
April 22, 2014

Notice of adjudication held to be valid despite “defects”

I must admit that when I read Carr J’s judgment in University of Brighton v Dovehouse Interiors, I was a little surprised at her findings on the various service points that the University had raised to challenge enforcement of the adjudicator’s decision. However, I was less surprised by the conclusion that the adjudication was commenced when the notice of adjudication was given. Although the court was specifically looking at the saving provision in clause 1.9.2 of the JCT Intermediate Building Contract (ICD), I must admit I’d always thought it was the notice that set the adjudication ball rolling.

Continue reading →

REUTERS | Toby Melville
April 15, 2014

Are adjudication costs recoverable or not?

A simple question perhaps, but is the answer just as simple?

Since the Construction Act 1996 came into force, the general position has been that, unless the parties agreed (either contractually or specifically in relation to an adjudication), that the adjudicator had jurisdiction to determine whether one party would pay the other party’s costs (legal and/or expert) of an adjudication, the parties would bear their own costs.

Parliament then helpfully intervened by enacting the snappily titled Local Democracy, Economic Development and Construction Act 2009 (LDEDCA 2009). Continue reading →

REUTERS | John Kolesidis
April 15, 2014

The effect of a failed adjudication on the JCT final certificate “conclusive evidence” clause

In University of Brighton v Dovehouse Interiors Ltd, Carr J in the TCC gave guidance on the meaning of “commenced” adjudication proceedings for the purposes of challenging a final certificate under the JCT standard form of contract. The judgment also considers what the position is where the adjudication is then aborted.

Continue reading →

REUTERS | Aly Song
April 15, 2014

Privilege and adjudication revisited

Privilege is not a new topic to these pages. For example, I considered it after the judgments in Walter Lily v Mackay (see Claims consultants beware) and R (Prudential plc and another) (see Legal advice privilege limited to lawyers).

However, in Walter Lily, Akenhead J said that there was an important caveat:

“…there remains an outstanding possible issue as to whether or not advice and other communications given by claims consultants in connection with adjudication proceedings are privileged. There is little authority on this latter issue and consideration might have to be given to issues of policy if and when this argument arises on another case.”

The Court of Appeal’s judgment in Rawlinson & Hunter v Akers provides some authority on this issue, and my thanks go to Anneliese Day QC for pointing this case out to me. Continue reading →

REUTERS | Alex Domanski
April 9, 2014

Net contribution: a problem shared?

I can’t believe that it is nearly five years since I blogged on the Langstane case. Time obviously flies when you’re getting old.

For those of you with short memories or with youth on your side, in Langstane a Scottish judge held (among other things) that a net contribution clause (NCC) in a consultant’s appointment was not “unreasonable” for the purposes of the Unfair Contract Terms Act 1977. That led to a flurry of claims from consultants (and their representative bodies) that NCCs were “fair” and “judicially endorsed”. Of course, the case decided nothing of the sort; merely that the NCC in question was not so unreasonable as to fall foul of UCTA. Continue reading →

REUTERS | Tobias Schwarz
April 8, 2014

An appeal or just reinforcing the adjudicator’s decision?

I read the Court of Appeal of Northern Ireland’s decision in Northern Ireland Housing Executive v Healthy Buildings (Ireland) Ltd recently. The appeal was brought by the Housing Executive, who thought the High Court judge was wrong in law to uphold an adjudicator’s decision (which found in favour of Healthy Buildings). The Court of Appeal did not agree with the Housing Executive and upheld the first instance decision, which, in turn, meant the court supported the adjudicator’s findings.

Continue reading →

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