Monthly Archives: May 2014

REUTERS | Vasily Fedosenko
May 30, 2014

May 2014 digest: all change at the TCC

Robert Louis Stevenson, Epilogue of the Cigar Divan:

“These are my politics; to change what we can; to better what we can; but still to bear in mind that man is but a devil weakly fettered by some generous beliefs and impositions.”

Although last month’s digest was all about change, an important change for construction litigators took place this month with the publication of the third revision of the TCC Guide. For those familiar with the TCC, you will know that the last revision (in October 2010) incorporated many of the recommendations in the Jackson report, long before they saw the light of day in the CPR “revolution” of April 2013. However, many others were missing, but not any more. This latest revision has many minor changes scattered throughout and several new and significant points are addressed, such as costs management (including costs budgets), menu options for disclosure and the e-disclosure protocol.

To make it easier for you, we published a note explaining what the key differences from the second revision are. We also published new notes on costs management and disclosure. Continue reading →

REUTERS | Eduardo Munoz
May 27, 2014

Court of Session finds adjudicator didn’t go off on a frolic

Spring may be a time for lambs to frolic in the fields but, it seems, it isn’t a time for adjudicators to frolic, at least not on this occasion. If you are wondering what an earth I’m talking about, take a look at Lord Malcolm’s judgment in Miller Construction (UK) Ltd v Building Design Partnership Ltd.

This is the second time in a few weeks that we’ve blogged about a Scottish case (you may recall that Matt recently blogged about Lord Woolman’s judgment in T Clarke v MMAXX Underfloor Heating). On both occasions the court has supported the adjudication process. That’s quite encouraging since I must confess to getting a wee bit disheartened about blogging on Scottish cases where the court didn’t support adjudication (for example, see my posts dated 23 April 2013 and 19 April 2011).

Anyway, I digress and so back to Miller v BDP. Continue reading →

REUTERS | Alexander Demianchuk
May 20, 2014

Memory… our fickle friend?

I was reading Tony Bingham’s piece on witness evidence in Building the other day and I was sufficiently intrigued by his reference to Leggatt J’s comments in Gestmin v Credit Suisse and another, that I felt compelled to dig out the judgment and read it for myself (or, as least, the relevant bits).

Although the case was concerned with alleged negligent investment advice related to the sale and purchase of shares (so nothing whatsoever to do with construction or adjudication), it is the section in the judgment described as “Evidence based on recollection” which is of interest. Continue reading →

REUTERS | Fabrizio Bensch
May 20, 2014

TCC Guide catches up with Jackson

We now have the revised TCC Guide, updated to ensure TCC practice is aligned with the CPR changes brought in as part of the Jackson reforms.

Through TeCSA, we were fortunate in that we had the opportunity to assist Edwards-Stuart J, Judge in Charge of the TCC, in updating the Guide. For those of you who haven’t yet taken a look, don’t expect anything radically different. I think the view was taken that “if it ain’t broke, don’t fix it”. The key driver for the update was simply to reflect the changes in procedure already in play in the TCC following the Jackson reforms, rather than remedying any perceived inadequacies in the existing version.

That said, personally I had always tended to prefer the look and feel of the Commercial Court Guide and the good news is the TCC Guide now has the same font, format and more detailed contents page as the Commercial Court Guide. A minor change but a welcome improvement for navigating what is a fairly lengthy tome.

So what are the main points of interest in the revised guide and what, if any, can be considered as missed opportunities? Continue reading →

REUTERS | David Mdzinarishvili
May 13, 2014

Conditions precedent – a glimmer of hope for contractors?

After seeing that Akenhead J’s judgment in Obrascon Huarte Lain SA v Her Majesty’s Attorney General for Gibraltar was published recently, I thought it was about time I sat down and read it. However, I had second thoughts when I saw that it stretched to 170 pages and wondered what interesting bits I could skip to.

Akenhead J often makes some interesting comments about experts, and this case is no exception. He described one of the health and safety experts as “eccentric” and said that “on occasions it felt as if one were in a university tutorial group as he gave evidence”. I can only imagine the excitement of a tutorial on health and safety matters, but rather than skipping to this part of the judgment, I decided instead to concentrate on Akenhead J’s comments on the conditions precedent requirements for giving notice of claims for time and money. Continue reading →

REUTERS | John Kolesidis
May 13, 2014

Court of Appeal considers CPR 3.9 and Mitchell in Chartwell v Fergies

In Chartwell Estate Agents Ltd v Fergies Properties SA, the Court of Appeal upheld Globe J’s first instance decision granting relief from sanction for late service of witness statements where the non-compliance was not trivial and there was no good reason for the default.

This decision acknowledges the role of case management discretion when applying the tests in CPR 3.9 and Mitchell v News Group Newspapers Ltd. Continue reading →

REUTERS | Carlos Barria
May 9, 2014

A first under the Building Act 1984 (part 2)

Hastings pier opened in 1872, enjoyed its prime in the 1930s and was a popular music venue in the 1960s, with many notable bands (including the Who and the Rolling Stones) playing there. But, like all Victorian piers, it reached the end of its design life and has, more recently, been in increasing dilapidation.

The pier made it into the law reports a year ago (which I commented on at the time), and has done so once again, this time before the Court of Appeal in Manolete Partners plc v Hastings Borough Council. It remains the first successfully litigated claim for compensation under section 106 of the Building Act 1984. Continue reading →

REUTERS | Kim Hong-Ji
May 6, 2014

A referring party that “would never give up”

It is quite common for an adjudicator to be appointed multiple times, either by the same parties on one project, or by one party on different projects. This may arise for a number of reasons, including the nature of the parties’ dispute, whether the individual is named in the contract as the adjudicator or because the referring party thinks highly of that individual (for whatever reason).

I wrote about the whys and the wherefores of multiple appointments a few years ago, and they came to mind again recently when I was reading Lord Woolman’s judgment in T Clarke v MMAXX Underfloor Heating. Continue reading →

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